Jefferson v. Stancil et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 23-cv-01773-PAB-NRN
JUSTIN A. JEFFERSON,
Plaintiff,
v.
MOSES ANDRE STANCIL, Director of the State of Colorado Department of
Corrections,
CHRIS LOBANOV-ROSTOVSKY, Head of the Sex Offender Management Board,
AMANDA RETTING, Head Administrator of the Sex Offender Management Program,
SIOBHAN BARTLOW, Warden of Fremont Correctional Facility,
SHANNON FOLTZ, Therapist at Fremont Correctional Facility,
JAMES BAILEY, Therapist at Fremont Correctional Facility, and
J.R. HALL, Head of the Parole Board,
Defendants.
ORDER
This matter comes before the Court on the Report and Recommendation on
CDOC Defendants’ Motion to Dismiss Third Amended Complaint [Docket No. 65]. The
recommendation addresses the defendants’ Motion to Dismiss Third Amended
Complaint [Docket No. 46]. The Court has jurisdiction pursuant to 28 U.S.C. § 1331.
I. BACKGROUND
The facts are set forth in the assigned magistrate judge’s recommendation,
Docket No. 65 at 2-5, and the Court adopts them for the purpose of ruling on the
objections. Plaintiff Justin Jefferson alleges five claims against the defendants, all of
whom are employees of the Colorado Department of Corrections, the Colorado State
Parole Board, or the Sex Offender Management Board of the Colorado. See generally
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Docket No. 23. Mr. Jefferson’s complaint challenges the constitutionality of various
aspects of Colorado’s Sex Offender Treatment and Monitoring Program (“SOTMP”). Id.
Defendants moved to dismiss Mr. Jefferson’s complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Docket No. 46. On October 22, 2024, the magistrate judge
issued a report and recommendation and recommended that the Court grant the
defendants’ motion. Docket No. 65 at 1. Mr. Jefferson timely objected to the
recommendation, Docket No. 67, and defendants filed a response to the objection.
Docket No. 68. Defendants J.R. Hall and Chris Lobanov-Rostovsky timely objected to
the recommendation, Docket No. 66, and Mr. Jefferson did not file a response.
II. LEGAL STANDARD
A. Review of a Magistrate Judge’s Recommendation
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Known as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996) (“One Parcel”). A specific objection
“enables the district judge to focus attention on those issues – factual and legal – that
are at the heart of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It
does not appear that Congress intended to require district court review of a magistrate’s
factual or legal conclusions, under a de novo or any other standard, when neither party
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objects to those findings.”). The Court therefore reviews the non-objected to portions of
a recommendation to confirm there is “no clear error on the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. This standard of review is something less
than a “clearly erroneous” or “contrary to law” standard of review, Fed. R. Civ. P. 72(a),
which in turn is less than de novo review. Fed. R. Civ. P. 72(b). Because Mr. Johnson
is proceeding pro se, the Court will construe his objections and pleadings liberally
without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991).
B. Motion to Dismiss under Rule 12(b)(6)
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). A court, however, does not need to
accept conclusory allegations. See, e.g., Hackford v. Babbit, 14 F.3d 1457, 1465 (10th
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Cir. 1994) (“we are not bound by conclusory allegations, unwarranted inferences, or
legal conclusions.”).
“[W]here the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged – but it has not shown – that
the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations
and alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]
claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
A. Plaintiff’s Objections
1. 	Objection One
Mr. Jefferson’s first objection takes issue with the magistrate judge’s analysis of
his due process claims. Docket No. 67 at 1-2. Mr. Jefferson argues that the
recommendation focuses on whether Mr. Jefferson was denied access to SOTMP
treatment because of his ongoing appeal, when instead it should focus on 1) whether he
was denied access to treatment because of his claim of innocence from his conviction
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and 2) whether continuous denials of access to treatment violate his rights. Id. Mr.
Jefferson further argues that “the question here falls not on whether it is constitutional to
have conditions, but whether the conditions are constitutional to deny the Plaintiff his
protected liberty interest and violate his Rights, which they are not.” Id. at 2.
First, the Court agrees with the magistrate judge’s analysis that the conditions for
entry into the SOTMP program are constitutional. See Docket No. 65 at 9-12, 14-16
(discussing substantive due process issues; discussing Fifth Amendment issues).
Second, the Court agrees with the magistrate judge’s finding, id. at 13-14, that
Mr. Jefferson does not have standing to bring his due process claims. “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.” Brown v. Buhman, 822 F.3d 1151,
1164 (10th Cir. 2016) (internal quotations and citation omitted). The third component of
standing – redressability – is not met here. Mr. Jefferson is not currently being denied
access to SOTMP; as the defendants explained at the motion hearing, Mr. Jefferson is
currently on the waiting list for open spots in the SOTMP program. Docket No. 65 at 12-
13 (recounting statements made at the motion hearing). The only possible denial of
treatment in this case is the denial that occurred in 2020 due to Mr. Jefferson’s ongoing
appeal. Docket No. 23 at 4. But a Court can only remedy past violations of the law via
monetary relief, not injunctive relief. See Hale v. Ashcroft, 683 F. Supp. 2d 1189, 1197
(D. Colo. 2009) (citing Nova Health Sys. v. Gandy, 416 F.3d 1149, 1155 n. 6 (10th Cir.
2005)). Yet Mr. Jefferson requests only injunctive relief against the defendants that he
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alleges were involved in the 2020 denial. Docket No. 23 at 28-29. Given that the Court
cannot provide the relief Mr. Jefferson requests, the Court agrees that Mr. Jefferson
lacks standing. The Court will overrule this objection.
2. 	Objection Two
Mr. Jefferson’s second objection focuses on the constitutionality of the SOTMP
requirements of admitting to the crime of which he was convicted, disclosing his sexual
history, and submitting to a polygraph examination. Docket No. 67 at 3-5. Mr. Jefferson
argues that the offense he was charged with “is a 50/50 case of an accuser’s word
versus the Plaintiff’s word,” and that it is inevitable that there will be individuals like him
who are convicted for crimes they did not commit and then are forced to admit to those
crimes in order to be released. Id. at 3-4.
To support his argument, Mr. Jefferson cites the plurality opinion in McKune v.
Lile, 536 U.S. 24 (2002), which upheld the constitutionality of a Kansas sex offender
treatment program with similar requirements to SOTMP. Id. at 4-5. Mr. Jefferson notes
that McKune involved an inmate with a determinate sentence and argues that the
Supreme Court might be less likely to uphold such a program as applied to people
serving indeterminate sentences like his. Id. at 4. The Court does not, however, need
to speculate as to how McKune might apply to the SOTMP because the Tenth Circuit
has already upheld the relevant SOTMP requirements. See Doe v. Heil, 533 F. App’x
831, 833-41 (10th Cir. 2013) (unpublished) (citing Searcy v. Simmons, 299 F.3d 1220,
1228 (10th Cir. 2002)). The Court will overrule this objection.
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3. 	Objection Three
At end of his objection, Mr. Jefferson writes “the Plaintiff preserves Claims 3 and
5 to be addressed by the ruling authority of the Supreme Court at such time.” Docket
No. 67 at 5. Mr. Jefferson’s third claim is a duplicative claim relating to his access to
treatment. See Docket No. 23 at 21 (alleging due process violations). His fifth claim
asserts that he should be entitled to access sexually explicit materials. Id. at 25-28.
The Court finds this objection to be improper because it does not “focus attention
on those issues – factual and legal – that are at the heart of the parties’ dispute.” One
Parcel, 73 F.3d at 1059. “[O]bjections must be specific because only an objection that
is sufficiently specific to focus the district court's attention on the factual and legal issues
that are truly in dispute will advance the policies behind the Magistrate's Act that led us
to adopt a waiver rule in the first instance.” Zumwalt v. Astrue, 220 F. App’x 770, 777-
78 (10th Cir. 2007) (unpublished) (internal quotations omitted) (holding a series of
sentence-long objections to various parts of a recommendation to be insufficient to
preserve an issue). By merely stating that he “preserves” the issues, Mr. Jefferson
does not “engage the magistrate judge’s analysis and offer a reasoned argument as to
why the magistrate judge’s conclusion was erroneous.” Katrina B. v. Kijakazi, 2021 WL
3465710, at *3 (N.D. Okla. Aug. 6, 2021) (citing Zumwalt, 220 F. App’x at 777-78). As a
result, the Court will overrule this objection. 1
1 Even if the Court were to consider this objection, it would overrule it. The Court
agrees with the magistrate judge that plaintiff’s third claim is duplicative of his first two
claims. See Docket No. 65 at 3-4 (explaining the duplicative nature of the third claim).
The Court discusses above its agreement with the magistrate judge’s recommendation
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B. Defendants’ Objection
The recommendation states that defendants J.R. Hall and Chris Lobanov-
Rostovsky “have not been served in this case.” Docket No. 65 at 2 n.3. Mr. Hall and
Mr. Lobanov-Rostovsky object, stating that they have indeed been served and that the
magistrate judge granted their request to join the motion to dismiss. Docket No. 66 at 2.
For this reason, Mr. Hall and Mr. Lobanov-Rostovsky argue that Mr. Jefferson’s claims
against them should be dismissed as well. Id. at 3.
Unlike the other defendants, who work for the Colorado Department of
Corrections (“CDOC”), Mr. Hall works for the Colorado State Parole Board and Mr.
Lobanov-Rostovsky works for the Sex Offender Management Board of the Colorado
Department of Public Safety. Id. at 1-2. CDOC waived service for its employees.
Docket No. 30. On March 11, 2024, the CDOC defendants filed the motion to dismiss
that is the subject of the magistrate judge’s recommendation. Docket No. 46. After
being served, Mr. Hall and Mr. Lobanov-Rostovsky appeared on March 15, 2024.
Docket Nos. 50, 51. The same day, Mr. Hall and Mr. Lobanov-Rostovsky moved to join
the CDOC defendants’ motion to dismiss. Docket No. 52. On March 21, 2024, the
magistrate judge granted this motion. Docket No. 58.
to dismiss the first and second claims, and agrees that the third claim should be
dismissed for the same reason. The Court also agrees with the magistrate judge
regarding plaintiff’s fifth claim. Prison officials may, in order to advance legitimate
penological interests, bar inmates from accessing sexually explicit materials. See, e.g.,
Jones v. Salt Lake Cnty., 503 F.3d 1147, 1154-56 (10th Cir. 2007).
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The Court finds no reason that the claims against Mr. Hall and Mr. Lobanov-
Rostovsky should not be dismissed for the same reasons as the CDOC defendants.
Therefore, the Court will sustain this objection to the recommendation. The Court will
dismiss the claims against Mr. Hall and Mr. Lobanov-Rostovsky.
C. Non-Objected to Portions of the Recommendation
The Court has reviewed the rest of the recommendation to satisfy itself that there
are “no clear error[s] on the face of the record.” See Fed. R. Civ. P. 72(b), Advisory
Committee Notes. Based on this review, the Court has concluded that the
recommendation is a correct application of the facts and the law.
IV. CONCLUSION
It is therefore
ORDERED that Report and Recommendation on CDOC Defendants’ Motion to
Dismiss Third Amended Complaint [Docket No. 65] is ACCEPTED in part. It is further
ORDERED that plaintiff’s Objection [Docket No. 67] is OVERRULED. It is further
ORDERED that Defendants Hall and Lobanov-Rostovsky’s Objection to the
Magistrate Judge’s Recommendation on Their Motion to Dismiss [Docket No. 66] is
SUSTAINED. It is further
ORDERED that defendants’ Motion to Dismiss Third Amended Complaint
[Docket No. 46] is GRANTED. It is further
ORDERED that claim one of the third amended complaint is DISMISSED
without prejudice against all defendants. It is further
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ORDERED that claim two of the third amended complaint is DISMISSED with
prejudice against all defendants. It is further
ORDERED that claim three of the third amended complaint is DISMISSED with
prejudice against all defendants. It is further
ORDERED that claim four of the third amended complaint is DISMISSED with
prejudice against all defendants. It is further
ORDERED that claim five of the third amended complaint is DISMISSED with
prejudice against defendants Moses Andre Stancil, Chris Lobanov-Rostovsky, Amanda
Retting, Siobhan Bartlow, Shannon Foltz, and James Bailey. 2 It is further
ORDERED that this case is closed.
DATED March 20, 2025.
BY THE COURT:
___________________________
PHILIP A. BRIMMER
Chief United States District Judge
2 Mr. Jefferson did not name defendant J.R. Hall in claim five of the complaint.
See Docket No. 23 at 25-26.
______________	__	_____________
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