Jefferson v. Stancil et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-01773-PAB-NRN
JUSTIN A. JEFFERSON,
Plaintiff,
v.
MOSES ANDRE STANCIL,
CHRIS LOBANOV-ROSTOVSKY,
AMANDA RETTING,
SIOBHAN BARTLOW,
SHANNON FOLTZ,
JAMES BAILEY, and
J.R. HALL,
Defendants.
REPORT AND RECOMMENDATION ON
CDOC DEFENDANTS’ MOTION TO DISMISS THIRD AMENDED COMPLAINT
(ECF No. 46)
N. Reid Neureiter
United States Magistrate Judge
This prisoner civil rights case is before the Court pursuant to an Order, ECF No.
47, issued by Chief Judge Philip A. Brimmer referring Defendants Moses Andre Stancil,
Amanda Retting, Siobhan Burtlow, Shannon Folz, and James Bailey (collectively, the
“CDOC Defendants”) Motion to Dismiss Third Amended Complaint (“Motion to
Dismiss”), ECF No. 46. The motion has been fully briefed, see ECF Nos. 62 & 63, and
the Court has heard argument from the parties, see ECF No. 64. Now, having taken
judicial notice of the docket and considered the applicable Federal Rules of Civil
Procedure and case law, the Court RECOMMENDS that the Motion to Dismiss be
GRANTED.
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BACKGROUND1
Plaintiff is an inmate in the custody of the Colorado Department of Corrections
(“CDOC”) serving an indeterminate (ten years to life) sentence under the Colorado Sex
Offender Lifetime Supervision Act of 1998 ( “SOLSA”), Colo. Rev. Stat. §§ 18-1.3-1001–
1012. ECF No. 23 at 4, 8. In this 42 U.S.C. § 19832 action, he challenges multiple
aspects of CDOC’s Sex Offender Treatment and Monitoring Program (“SOTMP”). He
brings five claims for relief against seven CDOC employees—five are sued solely in
their official capacities (Moses Andre Stancil, Chris Lobanov-Rostovsky, Amanda
Retting, Siobhan Bartlow, and J.R. Hall),3 while two employees (Shannon Foltz and
James Bailey) are sued in both their individual and official capacities.4 Id. at 2–3, 7–8.
Plaintiff’s first claim is brought under the Fourteenth Amendment’s Due Process
Clause. ECF No. 23 at 4, 8–14. The essence of the claim is that Plaintiff must
1 The following allegations are taken from Plaintiff's Third Amended Complaint
(“TAC”), ECF No. 23, and all non-conclusory allegations are presumed true for the
purposes of the Motion to Dismiss. All citations to docketed materials are to the page
number in the CM/ECF header, which sometimes differs from a document’s internal
pagination.
2 To state a claim for relief under § 1983, a plaintiff must establish (1) a violation
of rights protected by the federal Constitution or created by a federal statute or
regulation, (2) that was proximately caused (3) by the conduct of a “person,” (4) who
acted under color of any state statute, ordinance, regulation, custom or usage.
Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002).
3 Defendants Lobanov-Rostovsky and Hall have not been served in this case.
4 Plaintiff seeks numerous forms of declaratory and injunctive relief, along with
money damages from Defendants Foltz and Bailey. “Section 1983 plaintiffs may sue
individual-capacity defendants only for money damages and official-capacity defendants
only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161, n. 5 (10th Cir. 2011)
(citing Hafer v. Melo, 502 U.S. 21, 30, 27 (1991)). Thus, Plaintiff’s requests for relief can
be liberally construed as requesting declaratory and injunctive relief from Defendants in
their official capacities, which are simply claims against the CDOC. Plaintiff’s claims for
money damages can be liberally construed as individual-capacity claims against
Defendants Foltz and Bailey since they are sued in both an individual and official
capacity.
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participate in the SOTMP to be eligible for parole. Id. Plaintiff has served 11 years of his
10-years-to-life sentence, yet he claims he not been allowed entry into the required
treatment program. As a result, he has been denied parole eligibility four times due to
the lack of treatment. Id. at 4. Plaintiff contends that withholding mandatory treatment
constitutes a major change in the conditions of his confinement by moving his status
from “eligible to be considered for parole” to “ineligible to be considered for parole.” Id.
at 8. As such, he raises a due process claim.
Plaintiff’s second claim is that “[t]he Defendants’ policies that require the
revocation of the maintenance of innocence in order to have access to the protected
liberties of timely treatment and the timely ability to progress in treatment violate the
Fifth Amendment[.]” Id. at 14. Plaintiff contends that a requiring an admission of guilt
regarding his underlying conviction is incriminating because the statement could be
used against him in future criminal proceedings—particularly as character evidence in a
sexual assault case to show propensity, motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. Id. at 15–16. Plaintiff also
identifies multiple ways in which this requirement amounts to compulsion by the state:
he will not be admitted into treatment, he will be denied the ability to successfully
progress in treatment, he won’t be deemed “rehabilitated,” and he will remain
(indefinitely) ineligible for parole. Id. at 16–17.
Plaintiff’s third claim is duplicative of his first two claims. He claims that
“Defendants’ policies that require the Plaintiff to revoke his maintenance of innocence
infringes on his protected liberties to have Continuous Timely Access to Treatment,
Continuous Ability to Timely Progress in Treatment, and his Fifth Amendment Rights in
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violation of substantive due process under the Fourteenth Amendment”; and in support,
Plaintiff incorporates by reference the allegations discussed above. Id. at 21.
In his fourth claim, Plaintiff contends the “policies that require the Plaintiff to
confess past crimes and violations in a Sexual History written statement and through
polygraphs violate the Fifth and Fourteenth Amendment[.]” (Id. at 21). The supporting
allegations are similar to but broader than those supporting Claim 2. Instead of focusing
just on the facts underlying the crime for which he was convicted and sentenced, he
challenges the “policy requir[ing] that the Plaintiff complete a sex history written
narrative and polygraphs covering the engagement of numerous criminal behaviors.” Id.
at 22.
In his final claim, Plaintiff posits that “[t]he Defendants’ Publication Censorship
Policies Violate the Plaintiff’s First Amendment Protected Under the Fourteenth
Amendment[.]” Id. at 25. Plaintiff contests the CDOC’s policy to “censor, seize, and
prevent the Plaintiff[‘]s access to view, and the ability to possess, . . . non-obscene,
adult pornography and sexually oriented expression.” (Id. at 26). Plaintiff specifically
takes issue with a provision of the SOTMP treatment contract that, in part, requires him
to agree that he “will not possess, nor view, material that would stimulate or reinforce
[his] criminal or deviant sexual behavior or fantasy, such as, but [not] limited to
pornography or sexually explicit materials at any time[.]” (Id.). Plaintiff also appears to
challenge Administrative Regulation (“AR”) 330-26, which similarly restricts sexually
explicit content. Id. at 27. In general, Plaintiff submits that the CDOC’s policy is not
narrowly tailored in violation of the First Amendment because it prohibits an inmate from
viewing material that is legal, that there is no evidence that viewing or possessing such
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materials causes an inmate to become violent or act criminally, and that less restrictive
means are available to further the prison’s goals. Id. at 25–28.
Plaintiff requests injunctive relief that he be provided access to SOTMP
treatment, that all statements made by Plaintiff “of charged and uncharged criminal
behavior and or acts” be destroyed, and that Defendants stop censoring “protected
nudity, non-obscene, and sexually explicit material.” Id. at 29. He also requests
$350,000 in compensatory damages and $650,000 in punitive damages against
Defendants Foltz and Bailey. Id.
The CDOC Defendants move to dismiss the entirely of the TAC under Rule
12(b)(6) of the Federal Rules of Civil Procedure.
LEGAL STANDARDS
I. Pro Se Plaintiff
Plaintiff proceeds pro se. The Court, therefore, “review[s] his pleadings and other
papers liberally and hold[s] them to a less stringent standard than those drafted by
attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations
omitted). However, a pro se litigant’s “conclusory allegations without supporting factual
averments are insufficient to state a claim upon which relief can be based.” Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff
can prove facts that have not been alleged, or that a defendant has violated laws in
ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New
Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997) (court may not “supply additional
factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927
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F.2d 1156, 1159 (10th Cir. 1991) (the court may not “construct arguments or theories for
the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status
does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d
952, 957 (10th Cir. 2002).
II. Rule 12(b)(6)
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to
dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). “The court’s function on a Rule 12(b)(6) motion is not to weigh potential
evidence that the parties might present at trial, but to assess whether the plaintiff’s
complaint alone is legally sufficient to state a claim for which relief may be granted.”
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation
marks omitted).
“A court reviewing the sufficiency of a complaint presumes all of plaintiff’s factual
allegations are true and construes them in the light most favorable to the plaintiff.” Hall,
935 F.2d at 1109. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the
plaintiff pleaded facts which allow “the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two
prongs of analysis. First, the Court identifies “the allegations in the complaint that are
not entitled to the assumption of truth,” that is, those allegations which are legal
conclusions, bare assertions, or merely conclusory. Id. at 679–81. Second, the Court
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considers the factual allegations “to determine if they plausibly suggest an entitlement to
relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives
the motion to dismiss. Id. at 679.
However, the Court need not accept conclusory allegations without supporting
factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.
1998). “[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556
U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’ Nor does the complaint
suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility of
‘entitlement to relief.’” Id. (citation omitted).
ANALYSIS
I. Fourteenth Amendment Due Process Claim5
The Court first turns to Plaintiff’s due process claim that relates to the denial of
SOTMP treatment.
5 As described above, Plaintiff purports to bring several claims under the
Fourteenth Amendment. However, in Graham v. Connor, 490 U.S. 386, 395 n.10
(1989), the Supreme Court held that when government conduct is constrained by “an
explicit textual source of constitutional protection . . . that Amendment, not the more
generalized notion of ‘substantive due process,’ must be the guide for analyzing these
claims.” See also Albright v. Oliver, 510 U.S. 266, 273 (1994). As such, only Claim 1 is
appropriately governed solely by the Fourteenth Amendment.
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The Due Process Clause states, “No State shall . . . deprive any person of life,
liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. “The
Fourteenth Amendment’s Due Process Clause protects persons against deprivations of
life, liberty, or property; and those who seek to invoke its procedural protection must
establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221
(2005); see also Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012).
The Due Process Clause offers both procedural and substantive protections. The
Court will discuss both.
a. Procedural Due Process
To allege a violation of procedural due process, a plaintiff must establish (1) a
deprivation of an interest in life, liberty, or property, and (2) that the procedures followed
by the government in depriving a plaintiff of that interest did not comport with due
process of law. See Elliott, 675 F.3d at 1244; see also Templeman v. Gunter, 16 F.3d
367, 369 (10th Cir. 1994) (“The Due Process Clause guarantees due process only when
a person is to be deprived of life, liberty, or property.”). Where the deprivation of a
constitutionally-protected interest is alleged, an inmate is entitled to a relatively modest
suite of procedural due process protections. Wolff v. McDonnell, 418 U.S. 539, 559–572
(1974). Specifically, the inmate must be provided: (i) advance written notice of the
charges against him; (ii) the ability to present evidence in his defense, including the right
to call witnesses (unless prohibited due to security reasons); (iii) the right to a neutral
and detached hearing body; and (iv) a written statement of the hearing body’s reasons
for its decision, supported by some evidence in the record. Id.
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Here, Plaintiff does not identify any deficiencies in the procedural protections he
was afforded when Defendants decided to terminate/suspend his sex offender
treatment. Accordingly, he has not adequately alleged the second prong of a procedural
due process claim and, to the extent that the TAC can be liberally construed to assert
such a claim, it should be dismissed.
b. Substantive Due Process
The TAC alleges that Plaintiff was given a spot for treatment in 2020, eight years
into his sentence, but that he was then denied entry due to his ongoing appeal.
“Substantive due process bars ‘certain government actions regardless of the
fairness of the procedures used to implement them.’” Brown v. Montoya, 662 F.3d 1152,
1172 (10th Cir. 2011) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840
(1998)). “The Supreme Court has described two strands of the substantive due process
doctrine. One strand protects an individual’s fundamental liberty interests, while the
other protects against the exercise of governmental power that shocks the conscience.”
Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). “Prisoners are entitled
to substantive due process; but substantive-due-process rights available to free persons
may be denied to prisoners if the denial bears a rational relation to legitimate
penological interests.” Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011)
(internal quotations and brackets omitted).
A substantive due process claim likely turns on the existence of a constitutionally
protected liberty interest. The existence of a constitutionally protected liberty interest
depends upon the nature of the interest asserted. See Sandin v. Conner, 515 U.S. 472,
480 (1995). A prisoner is not entitled to any procedural protections in the absence of a
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grievous loss. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Generally, a liberty
interest protected by due process may arise under the United States Constitution or
state law. See Sandin, 515 U.S. at 483–84. However, the Constitution itself does not
create a protected liberty interest in a prisoner’s release (or consideration for parole)
prior to the expiration of a valid sentence. See Swarthout v. Cooke, 562 U.S. 216, 220
(2011) (per curiam); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,
7 (1979). A liberty interest may arise under state law if the challenged conditions impose
an “atypical and significant hardship on the inmate in relation to the ordinary incidents of
prison life.” Sandin, 515 U.S. at 484.
Defendants argue that the Tenth Circuit has held an inmate does not have a
liberty interest in timely and adequate SOTMP treatment. That is not necessarily the
case. See Stetzel v. Williams, No. 20-cv-01579-PAB-STV, 2022 WL 1177908, at *7 n.9
(D. Colo. Jan. 28, 2022) (explaining that the Tenth Circuit has not directly addressed
whether an inmate sentenced under SOLSA has a liberty interest in the SOTMP such
that they are entitled to due process prior to being terminated), report and
recommendation adopted, 2022 WL 897103 (D. Colo. Mar. 25, 2022). Some courts in
this District have found that, in certain circumstances, a convicted sex offender in
Colorado may have a state-created liberty interest in continued sex offender treatment if
such treatment is required to be eligible for parole. See Beebe v. Heil, 333 F. Supp. 2d
1011, 1017 (D. Colo. 2004); Tillery v. Raemisch, No. 16-cv-00282-WJM-STV, 2018 WL
4777411 at *7 (D. Colo. Oct. 3, 2018) (recognizing that a Colorado state prisoner may
have “a liberty interest in being able to access [sex offender] treatment during his
incarceration within a reasonable period of time, taking into account when and the
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relative extent to which he meets the requirements for such treatment under CDOC
regulations.”); Lerner v. Stancil, No. 22-CV-00888-NYW-NRN, 2023 WL 3595998, at *8
(D. Colo. May 23, 2023) (SOLSA “mandates sex-offender treatment, which creates a
‘legitimate claim of entitlement’ to that treatment by SOLSA inmates,” which in turn
“creates a liberty interest for due process purposes”); but see McDaniel v. Dauffenbach,
No. 20-cv-02033-DDD-KLM, 2023 WL 4908370, at *2 (D. Colo. Feb. 3, 2023) (“The
Government is right that Mr. McDaniel does not have a due process liberty interest in
sex offender treatment.”). In Allen v. Clements, 930 F. Supp. 2d 1252 (D. Colo. 2013),
Chief Judge Brimmer found that “SOLSA creates a liberty interest in treatment because
it both mandates treatment and conditions parole on progressing successfully through
treatment” and thus “[i]nmates sentenced under SOLSA have a liberty interest in not
being terminated from treatment without due process.” Id. at 1264, 1266 (citing Beebe,
333 F. Supp. 2d at 1017).
However, even assuming that Plaintiff has a protected liberty interest in
accessing SOTMP treatment, “the right to [sex offender] treatment is not absolute or
unconditional.” Id. at 1264. Thus, the court in Beebe v. Stommel, No. 02-cv-01993-
WYD-BNB (D. Colo. Nov. 13, 2006) (ECF No. 163 at 34–35), held it is constitutional to
condition receipt of sex offender treatment on an “inmate’s willingness and ability to
comply with the rules and regulations governing treatment” and that courts must defer to
prison officials “to determine what rules and regulations are necessary to ensure
successful treatment that meets institutional concerns.” Furthermore,
in Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court held that
when inmates’ constitutional rights—even fundamental ones otherwise
warranting strict scrutiny—are implicated by prison policies, the prison
policy prevails so long as it is reasonably related to a legitimate penological
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objective. Thus, at least as far as the “fundamental liberty” test goes in this
case, [the plaintiff’s] substantive Due Process claim will fail unless he can
show that either: (i) the terms of the SOTMP are not reasonably related to
a legitimate penological interest, or (ii) the effect that the SOTMP has on his
First and Fifth Amendment rights is shocking to the judicial conscience.
Firth v. Shoemaker, No. 09-cv-00224-MSK-MJW, 2011 WL 4501971, at *7 (D. Colo.
Sept. 29, 2011), aff’d, 496 F. App’x 778 (10th Cir. 2012).
As will be discussed in more detail below, requiring Plaintiff to admit guilt, and
thus forgo his criminal appeal, in order to be admitted to SOTMP is a reasonable policy
that neither offends the Fifth Amendment nor shocks the conscience for the purposes of
substantive due process. See id. at *8 (“The inmate may still choose to invoke his Fifth
Amendment rights and fail to complete the SOTMP, but that choice (and the parole-
related consequences that flow from it) will not thereafter support a claim for substantive
Due Process.”).
More significantly, Defendants argue that Plaintiff’s claim is now moot because
he no longer has a pending appeal and is on the list to receive SOTMP in the future. In
the TAC, Plaintiff states that he submitted a reentry form in March 2023, see ECF No.
23 at 14–15, after his appeals and/or habeas proceedings had concluded, see ECF No.
63-1 (state and federal court dockets showing that as of January 2021, certiorari has
been denied in Plaintiff’s criminal appeal and his habeas petition has been terminated).6
It also appears from the TAC that Plaintiff did, in fact, admit to engaging in the behavior
for which he was convicted. See ECF No. 23 at 15 (“Plaintiff was threatened and
compelled . . . to comply with the policy to revoke his maintenance of innocence as the
Plaintiff did not want to spend the rest of his life in prison.”). Defendants confirmed this
6 The Court may take judicial notice of these documents. See GeoMetWatch
Corp. v. Behunin, 38 F.4th 1183, 1205 (10th Cir. 2022).
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at the motion hearing and informed the Court that Plaintiff was eligible and on the list for
treatment. Thus, because Plaintiff’s due process claim is premised on the denial of
SOTMP treatment due to his pending appeal, and Plaintiff concedes that his appeals
and other post-conviction proceedings have concluded, Defendants argue that claim is
now moot. See Bacote v. Fed. Bureau of Prisons, No. 22-1325, 2024 WL 4490517, at
*3 (10th Cir. Oct. 15, 2024) (“A case becomes constitutionally moot if it ceases to
present a real and substantial controversy with respect to which specific relief may be
fashioned.”) (citation and quotation marks omitted).
Given that Plaintiff was not pursuing any appeal at the time this case was filed
and had, in fact, submitted SOTMP reentry forms, this is more accurately characterized
as an issue of standing rather than mootness. See Brown v. Buhman, 822 F.3d 1151,
1163 (10th Cir. 2016) (“Standing concerns whether a plaintiff’s action qualifies as a case
or controversy when it is filed; mootness ensures it remains one at the time a court
renders its decision.”). Nevertheless, Defendants’ argument that the Court cannot
fashion any injunctive remedy for Plaintiff’s alleged injury is well taken. See id. at 1164
(“To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a
sufficient causal connection between the injury and the conduct complained of, and (3)
a likelihood that the injury will be redressed by a favorable decision.”) (emphasis added)
(citation and quotation marks omitted). And as to the two Defendants against whom
Plaintiff seeks monetary damages—Defendants Folz and Bailey—the TAC does not
allege that they played any part in the 2020 decision to deny SOTMP treatment based
on Plaintiff’s appeal. Instead, they are alleged to have forced Plaintiff to sign the reentry
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forms in 2023, well after the appeals process had ended. Thus, as currently pled,
Plaintiff does not have standing to bring his Fourteenth Amendment claim.
For these reasons, Plaintiff’s Fourteenth Amendment due process claim (Claim
1) should be dismissed.
II. Fifth Amendment Claims
The Fifth Amendment provides that no person “shall be compelled in any criminal
case to be a witness against himself.” U.S. Const. amend. V. The privilege against self-
incrimination has two components: incrimination and compulsion. See Lile v. McKune,
224 F.3d 1175, 1179 (10th Cir. 2000), rev’d on other grounds, 536 U.S. 24 (2002). To
state a cognizable Fifth Amendment claim, Plaintiff must allege that: (1) the statements
desired by prison officials carried the risk of incriminating him, and (2) the penalty he
suffered amounted to compulsion. See Doe v. Heil, 533 F. App’x 831, 837 n.4 (10th Cir.
2013) (unpublished); Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). “[T]he
protection afforded by the Fifth Amendment privilege against self-incrimination” is
“broadly construed.” United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir.
2016). “The touchstone of the Fifth Amendment is compulsion . . . [however], [t]he Fifth
Amendment’s text does not prohibit all penalties levied in response to a person’s refusal
to incriminate himself.” Id. at 1147 (citations and internal punctuation omitted).
Plaintiff cannot maintain a § 1983 claim based on an alleged Fifth Amendment
violation. As stated above, Plaintiff must allege facts to show that the CDOC’s policy of
requiring Plaintiff to admit his crime or sexual history or take a polygraph is not rationally
related to a legitimate penological interest. See Turner, 482 U.S. at 89; Gee v. Pacheco,
627 F.3d 1178, 1187–88 (10th Cir. 2010). In Doe v. Heil, 533 F. App’x 831, 839–40
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(10th Cir. Aug, 26, 2013) (unpublished), the Tenth Circuit recognized that the CDOC
has a legitimate penological interest in the rehabilitation of sex offenders before their
release on parole “that is furthered by requiring [sex offenders], without regard to their
Fifth Amendment stake in avoiding self-incrimination, to submit to a polygraph and
admit their full sexual history.” See also Searcy v. Simmons, 299 F.3d 1220, 1228 (10th
Cir. 2002) (“The state’s interest in rehabilitating sex offenders is a valid one, and the
requirement for admission of responsibility is considered a legitimate part of the
rehabilitative process.”); McKune v. Lile, 536 U.S. 24, 33 (2002) (“When convicted sex
offenders reenter society, they are much more likely than any other type of offender to
be rearrested for a new rape or sexual assault. States thus have a vital interest in
rehabilitating convicted sex offenders. Therapists and correctional officers widely agree
that clinical rehabilitative programs can enable sex offenders to manage their impulses
and in this way reduce recidivism. An important component of those rehabilitation
programs requires participants to confront their past and accept responsibility for their
misconduct.”) (citations omitted); Allen v. Falk, 624 F. App’x 980, 985 (10th Cir. 2015)
(reaffirming the holding of Doe v. Heil).
In his response, Plaintiff “combats” Turner and argues that Heil was wrongly
decided. The Court is bound to follow Supreme Court precedent, see Hutto v. Davis,
454 U.S. 370, 375 (1982) (“[A] precedent of this Court must be followed by the lower
federal courts no matter how misguided the judges of those courts may think it to be.”),
and, like other courts in the District, it finds the reasoning of Heil persuasive. Therefore,
the Court declines Plaintiff’s invitation to ignore these decisions. “To the extent that the
SOTMP causes tension with an inmate’s invocation of his Fifth Amendment rights, the
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therapeutic and rehabilitative goals behind the SOTMP constitute legitimate penological
interests that prevail.” Firth, 2011 WL 4501971, at *8. Plaintiff’s Fifth Amendment claims
should be dismissed.
III. First Amendment Claim
In his fifth claim for relief, Plaintiff alleges that the CDOC and SOTMP’s
prohibition on possessing and viewing sexually explicit material violates his First
Amendment rights. The Court agrees with Defendants that this claim should be
dismissed.
“Inmates have a First Amendment right to receive information while in prison to
the extent the right is not inconsistent with prisoner status or the legitimate penological
objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004).
Restrictions on a prisoner’s First Amendment free speech and association rights are
constitutional if the restrictions are reasonably related to legitimate penological interests.
Turner, 482 U.S. at 89. In applying this standard, courts are to consider the following
factors: (1) whether there is a valid rational connection between the prison regulation or
practice and a legitimate governmental interest; (2) whether the regulation or practice
allows inmates alternative means of exercising the subject constitutional right; (3) the
impact of accommodation of the asserted right on guards, other inmates, and the
allocation of resources generally; and (4) the absence of ready alternatives to the
regulation or practice. Id. at 89–91. “The burden, moreover, is not on the State to prove
the validity of prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta,
539 U.S. 126 (2003).
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As Defendants note, federal courts have roundly permitted prisons to prohibit
sexually explicit material. See ECF No. 46 at 15 (collecting cases). The Court agrees
“that the restriction of sexually explicit publications in a federal prison setting is
reasonably related to the legitimate penological interests of rehabilitation of inmates and
security of the institution as a whole.” See Jordan v. Sosa, 577 F. Supp. 2d 1162, 1170
(D. Colo. 2008); see also Jones v. Salt Lake Cnty., 503 F.3d 1147, 1153 (10th Cir.
2007) (upholding county jail regulation barring inmates from receiving “sexually explicit
material”); Hunsaker v. Jimerson, No. 08-cv-01479-REB, 2011 WL 4374801, at *3 (D.
Colo. 2011) (where Judge Robert E. Blackburn, applying the Turner factors, found the
CDOC regulation at issue here, AR 300-26, to be facially constitutional). This is
especially true as related to sex offenders. See Colo. Rev. Stat. § 18-1.3-1001 (stating
that sex offender treatment and supervision “is necessary for the safety, health, and
welfare of the state”).
The Court also finds that Plaintiff has alternate means of exercising his First
Amendment rights as he can access to a broad range of other publications and written
material, and that “accommodating plaintiff’s asserted constitutional right would place an
undue burden on prison resources and possibly threaten the security in the prison as
well as the safety of the guards and inmates.” Jordan, 577 F. Supp. 2d at 1171. Finally,
although a prison’s implemented restriction cannot be an exaggerated response, neither
are prison officials required to adopt the least restrictive alternative to achieve the
legitimate penological goal. Thornburgh v. Abbott, 490 U.S. 401, 410–11 (10th Cir.
March 28, 2011). The Court is not persuaded that allowing Plaintiff to possess explicit
materials would somehow be a feasible alternative in furthering the penological interests
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reflected in the SOTMP and the CDOC’s regulations. Indeed, “[e]xempting him from the
ban on sexually explicit materials could undermine [P]laintiff’s rehabilitation and the
[CDOC’s] plan for his rehabilitation.” Jordan, 577 F. Supp. 2d at 1172.
Plaintiff’s First Amendment claim should be dismissed.
CONCLUSION
It is hereby RECOMMENDED that the CDOC Defendants’ Motion to Dismiss
Third Amended Complaint (“Motion to Dismiss”), ECF No. 46, be GRANTED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),
the parties have fourteen (14) days after service of this recommendation to serve
and file specific written objections to the above recommendation with the District
Judge assigned to the case. A party may respond to another party’s objections
within fourteen (14) days after being served with a copy. The District Judge need
not consider frivolous, conclusive, or general objections. A party’s failure to file
and serve such written, specific objections waives de novo review of the
recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53
(1985), and also waives appellate review of both factual and legal questions.
Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,
91 F.3d 1411, 1412-13 (10th Cir. 1996).
Dated: October 22, 2024
Denver, Colorado N. Reid. Neureiter
United States Magistrate Judge
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