Ellis v. Retting et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 23-cv-03425-PAB-MEH
MARK S. ELLIS,
Plaintiff,
v.
AMANDA RETTING,
XAVIERA TURNER,
KRISTI STANSELL,
KYLE JONES,
JUSTIN ENSINGER, and
DOES 1-50,
Defendants.
RECOMMENDATION OF CHIEF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, Chief United States Magistrate Judge.
This matter comes before me on Defendants’ Motion to Dismiss Plaintiff’s First Amended
Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (“Motion”). ECF 35. Defendants move the Court
to dismiss all claims in the First Amended Verified Prisoner Complaint (“FAC”) [ECF 4]. Id. In
short, the FAC alleges that Plaintiff, incarcerated in the Colorado Department of Corrections
(“CDOC”) system, was terminated from a Sex Offender Treatment and Monitoring Program
(“SOTMP”) based on his religious beliefs in violation of numerous constitutional and statutory
rights. The Motion is fully briefed, and oral argument would not materially assist me in
adjudicating the matter. ECFs 42, 51. For the following reasons, I respectfully recommend that the
Motion be granted in part and denied in part as follows.
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FACTUAL BACKGROUND
In determining whether dismissal is proper, I must accept the allegations of the FAC as
true and construe those allegations, and any reasonable inferences that might be drawn from them,
in the light most favorable to the plaintiff. Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 806
(10th Cir. 1999). Therefore, the following facts are accepted as true for purposes of the Motion to
Dismiss.
In 2002, Plaintiff was convicted of a sexual offense and sentenced to an indeterminate
sentence pursuant to Colorado’s Sex Offender Lifetime Supervision Act (“SOLSA”), Colo. Rev.
Stat. §§ 18-1.3-1001 to 1012. ECF 4 at 4–6; ECF 35 at 1. While incarcerated at Colorado Territorial
Correctional Facility in 2021, Plaintiff was admitted to the SOTMP. ECF 4 at 5. After he started
treatment and was compliant for more than a half year, Plaintiff sought parole from the Colorado
State Parole Review Board. Id. at 7. The Parole Board “tabled” Plaintiff’s application for parole,
pending his completion of the SOTMP. Id. Approximately six months later, after a year in the
program, Plaintiff was terminated from the SOTMP. Id. Thereafter, he was not given parole.
Plaintiff alleges he received notice of termination proceedings on May 2, 2022. Id. The
next day, he was told he would not be allowed to call therapists or SOTMP group members as
witnesses in the formal SOTMP termination hearing that would be held on May 5, 2022. Id. at 8.
In fact, he does not identify any witnesses he was permitted to call, although apparently, he was
permitted to present letters from others. See ECF 4; ECF 35 at 16. The day after the hearing,
Plaintiff was served with a copy of the “Disposition of SOTMP Termination Review,” which
contained certain findings regarding Plaintiff’s progress in the program. ECF 4 at 8–9.
Plaintiff alleges CDOC’s SOTMP therapeutic treatment team terminated him because his
expression of his Christian beliefs constituted “criminal thinking error” and “distorted core belief.”
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Id. at 19, 22. Plaintiff also alleges other disparaging comments about his Christian faith, such as
(1) “[y]ou Christians often use religion as an excuse for your sexually assaultive behaviors,”
id. at 6; (2) “[y]ou use religiosity as a way to avoid taking responsibility,” id. at 12; (3) “I know
you claim to be one [a Christian],” but you are in “jeopardy” of not going to the “hereafter,” id. at
17; (4) asking Plaintiff what the Bible said about those who harm children, id. Indeed, Plaintiff
alleges on May 4, 2021, the SOTMP team gave Plaintiff a document titled “Distorted Core Beliefs”
which contained a section titled “Criminal Thinking Error #8 Religiosity,” which outlined ways
that “religious” inmates use faith-based statements to justify themselves. Id. at 22–23. Plaintiff
alleges that after these actions, he understood that the “only path to ‘successful progression’ in
SOTMP treatment was to disavow his life-long belief in Christianity.” Id. at 23.
Termination from the SOTMP resulted in Plaintiff’s parole eligibility to be “changed from
eligible to be considered for parole to ineligible to be considered for parole.” Id. at 5. Plaintiff
alleges he “was placed in the untenable position of having to abandon central tenants [sic] of his
Christian faith in order to be returned to treatment.” Id. at 12.
Plaintiff also alleges that he wrote letters concerning his “wrongful termination” from the
program, including to the Governor of the State of Colorado, the former Director of the CDOC,
and others. Id. at 9. He states that officials in the SOTMP have refused to meaningfully respond to
his repeated requests to be readmitted to the SOTMP. Id. at 10–11. Further, he alleges that his
January 29, 2023 grievance, in which he stated he was “wrongfully terminated” from the SOTMP
and that such termination was “patently unfair,” resulted in a return letter from the SOTMP team
stating that because Plaintiff “chose” to write that letter, it “indicates you require further review of
your accountability regarding behaviors that [led] to your unsuccessful discharge.” Id. at 9–10. It
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also stated, “How does writing a letter placing blame on treatment and SOTMP staff . . . align with
your goal of getting back into treatment.” Id. at 10.
In his statement of damages, Plaintiff alleges he has suffered a myriad of emotional, mental
and physical injuries as a result of the denial of SOTMP treatment, including anxiety, depression,
insomnia, dissociative disorder, severe headaches, inflammation, neck and back pain, PTSD,
chronic immune deficiency leading to viral and bacterial infections, joint pain, and generalized
statements of the mental and emotional consequences of having the possibility of parole taken
from him. Id. at 23. He makes no factual allegation that any of these conditions have been
diagnosed by a medical professional.
LEGAL STANDARD
I. 	Fed. R. Civ. P. 12(b)(6)
The purpose of a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is to test the sufficiency
of the plaintiff’s complaint. See Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226,
1236 (10th Cir. 2008). “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.’” Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Twombly requires a two-prong
analysis. Id. at 678.
First, courts must identify “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.” Iqbal, 556 U.S. at 678, 680–81. Indeed, “[t]hreadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.” Id. at 678 (citing
Twombly, 550 U.S. at 555). The complaint must provide “more than labels and conclusions” or
merely “a formulaic recitation of the elements of a cause of action”; “courts ‘are not bound to
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accept as true a legal conclusion couched as a factual allegation.’” Twombly, 550 U.S. at 555
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining whether a complaint states
a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679 (internal citation
omitted). “[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.” Id. at 679 (internal quotations and citation omitted).
Second, courts must consider 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. 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. at 678 (citing Twombly, 550 U.S. at 556). It
“refers to the scope of the allegations in a complaint: if they are so general that they encompass a
wide swath of conduct, much of it innocent, then the plaintiffs have not nudged their claims across
the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014)
(quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The nature and
specificity of the allegations required to state a plausible claim will vary based on context.” Safe
Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn Gaming, LLC
v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, “[w]hile the 12(b)(6) standard does not
require that [a plaintiff] establish a prima facie case in [a] complaint, the elements of each alleged
cause of action may help to determine whether [a plaintiff] has set forth a plausible claim.” Khalik,
671 F.3d at 1191 (internal citations omitted).
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II. 	Treatment of a Pro Se Plaintiff’s Complaint
A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent
standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,
425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)). “Th[e] court, however, will not supply additional factual allegations to round out a
plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.” Smith v. U.S., 561 F.3d 1090,
1096 (10th Cir. 2009) (quoting Whitney v. N.M., 113 F.3d 1170, 1173-74 (10th Cir. 1997)). The
Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the pleadings to state a
valid claim on which the plaintiff could prevail, [it] should do so despite the plaintiff’s failure to
cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence
construction, or his unfamiliarity with pleading requirements.” Diversey v. Schmidly, 738 F.3d
1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this interpretation is
qualified in that it is not “the proper function of the district court to assume the role of advocate
for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).
ANALYSIS
In their Motion, Defendants argue that Plaintiff has failed to state any claims upon which
relief can be granted. ECF 35. I will address the claims, applicable law, and arguments in roughly
the same order as the Motion, although I characterize some of the claims differently based on my
liberal construction of the FAC.
I. 	Claims One and Five: First Amendment & Religious Land Use and Institutionalized
Persons Act (“RLUIPA”)
In the FAC, Plaintiff claims two violations of his religious rights. ECF 4. In Claim One,
Plaintiff asserts an infringement of his First Amendment right to be free “from retaliation for filing
grievances where an inmate was engaged in [a] constitutionally protected activity” and engage in
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free speech under 42 U.S.C. § 1983. Id. at 25. Moreover, Plaintiff asserts that Defendants’ actions
in removing him from the SOTMP and subsequently refusing to readmit him to it, citing in part
his religious sentiments, also “chilled” his ability “to practice his religion.” Id. at 26. In Claim
Five, Plaintiff alleges Defendants violated RLUIPA by providing “unequal access and preference
to agnostic participants of SOTMP by virtue of the favored participants’ lack of ‘religiosity.’” Id.
at 29. Plaintiff asserts these actions “inhibited or constrained . . . [his] conduct and expression of
his Christian faith.” Id.
A. 	RLUIPA and First Amendment Exercise of Religion
Under RLUIPA:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution ... unless the government
demonstrates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a). For Plaintiff to plead a claim under RLUIPA, he must “demonstrate he
wishes to engage in (1) a religious exercise (2) motivated by a sincerely held belief, which exercise
(3) is subject to a substantial burden imposed by the government.” Abdulhaseeb v. Calbone, 600
F.3d 1301, 1312 (10th Cir. 2010) Incidentally, “anything that constitute[s] a substantial burden
under RLUIPA would also . . . constitute[] a substantial burden under the First Amendment.”
Williams v. Hansen, 5 F.4th 1129, 1134 (10th Cir. 2021). Defendants note religious exercise is
substantially burdened when a government places substantial pressure on an adherent either not to
engage in conduct motivated by a sincerely held religious belief or to engage in conduct contrary
to a sincerely held religious belief. ECF 35 at 6 (citing Abdulhaseeb, 600 F.3d at 1315).
Defendant argues that the alleged pejorative statements about Plaintiff’s religious beliefs
“were clearly made in the context of therapy and treatment through the SOTMP, and they
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consistently point to Plaintiff’s reliance on his religion as an excuse or support for his behavior.”
Id. at 8. Defendants state that no one made Plaintiff disavow his religion, but rather, they told him
the “corrective” is for him to “realize that [his] religious beliefs support a false positive of self-
esteem.” Id. (quoting ECF 4 at 22). Defendants affirmatively argue that they “instructed that he
should stop using his religious beliefs to justify his criminal thinking and behavior.” Id. Thus, they
argue, “Plaintiff’s misunderstanding or misinterpretation of the statements made, and materials
provided to him by Defendants in therapy and treatment do not constitute a First Amendment or
RULIPA violation.” Id. (citing Abdulhaseeb, 600 F.3d at 1312).
I find that at the pleading stage, I cannot reach the conclusions stated by Defendants.
Plaintiff has pleaded that during SOTMP he expressed his sincere religious beliefs (the sincerity
of which is not challenged here), which the SOTMP treaters used to terminate him from the
program, and as a result, he is not eligible for parole. My review of precedent shows that these
claims state a potential violation of RLUIPA. E.g., Thayer v. Howard, No. 22-3086-DDC, 2024
WL 1513514, at *10 (D. Kan. Apr. 8, 2024) (“By alleging that defendants terminated him from
participation in sex offender treatment, and belittled and forced him to engage in exercises contrary
to his religious beliefs during such treatment . . ., plaintiff arguably states claims under RLUIPA.”).
To require Plaintiff to choose between violating his religious beliefs or never becoming eligible
for parole appears to me to plead a substantial burden on this exercise of religion. See Shaw v.
Frank, No. 05-C-872, 2006 WL 354222, at *6 (E.D. Wis. Feb. 15, 2006) (“[The prison’s] policy
forces a prisoner, during the grievance process, to choose between violating his religious beliefs
or not eating. This constitutes a substantial burden on religious exercise.”).
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For these same reasons, Plaintiff’s First Amendment claim, insofar as it relies on a
substantial burden on his free exercise of religion (which uses the same standard as a RLUIPA
claim), should proceed.
B. 	First Amendment Retaliation and Freedom of Speech
The filing of prison grievances is a constitutionally protected activity for purposes of a First
Amendment retaliation claim. Requena v. Roberts, 893 F.3d 1195, 1211 (10th Cir. 2018).
Government retaliation against a plaintiff for exercising his or her First Amendment
rights may be shown by proving the following elements: (1) that the plaintiff was
engaged in constitutionally protected activity; (2) that the defendant's actions
caused the plaintiff to suffer an injury that would chill a person of ordinary firmness
from continuing to engage in that activity; and (3) that the defendant's adverse
action was substantially motivated as a response to the plaintiff's exercise of
constitutionally protected conduct.
Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007).
Defendants argue Plaintiff was terminated from the SOTMP for legitimate reasons “not . .
. based on his exercise of free speech or religion.” ECF 35 at 9. Further, Defendants argue they
themselves did not terminate Plaintiff from the SOTMP; rather, “three non-party individuals
explain the bases for Plaintiff’s termination, and do not support any claim for retaliation by
Defendants.” Id. at 10. They state that the allegations in the FAC “demonstrate that Plaintiff’s
removal from the SOTMP was based on his words and actions, not retaliation.” Id. However, the
FAC pleads almost exactly the opposite explanation. I believe the contradictory statements and
arguments by Plaintiff and Defendants demonstrate that I cannot reach a conclusion on a Motion
to Dismiss, and a dispositive decision must await a motion for summary judgment that includes
evidence outside the pleadings.
Accordingly, I recommend that the Motion be denied as to Claims One and Five.
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II. 	Claims Two and Three: Procedural and Substantive Due Process
Plaintiff asserts violations of his procedural and substantive due process rights in Claims
Two and Three of the FAC. ECF 4. Plaintiff inadvertently styled Claim Two as being brought
under the “6th and 14 th Amendments” [id. at 26], however, construing the FAC liberally, it is clear
that he is really alleging a Fifth and Fourteenth Amendment claim. Thus, I agree with Defendants
that “the Sixth Amendment by its terms applies only to criminal proceedings,” and is therefore
inapplicable here. Ferguson v. New Mexico Corr. Dep’t, 38 F. App’x 561, 563 (10th Cir. 2002).
Accordingly, I only consider Claim Two to the extent it can be read as being asserted under the
Fifth and Fourteenth Amendments rights to substantive and procedural due process. Additionally,
in Claim Three, Plaintiff asserts a theory under the Eighth Amendment for cruel and unusual
punishment, which is “essentially coextensive” with substantive due process in the prison context.
Allen v. Clements, 930 F. Supp. 2d 1252, 1270–71 (D. Colo. 2013) (quoting Lunsford v. Bennett,
17 F.3d 1574, 1583 (7th Cir. 1994)).
A. Procedural Due Process
An inmate’s liberty interests cannot be denied without those minimal safeguards afforded
by the Due Process Clause of the Fourteenth Amendment. Mitchell v. Maynard, 80 F.3d 1433,
1444 (10th Cir. 1996). An inmate has a “constitutionally protected liberty interest in the receipt of
SOTMP treatment.” Firth v. Shoemaker, 496 F. App’x 778, 785 (10th Cir. 2012); Lerner v. Stancil,
No. 22-cv-00888-NYW-NRN, 2023 WL 3595998, at *10 (D. Colo. May 23, 2023) (SOLSA
“creates a liberty interest in the opportunity to receive treatment.”). This is particularly true when
the State of Colorado requires such treatment before certain inmates can be eligible for parole.
Beebe v. Heil, 333 F. Supp. 2d 1011, 1016 (D. Colo. 2004). Therefore, an inmate must be “provided
due process before being terminated from the treatment program.” Id. at 1018 (cited in Firth).
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When it comes to prison disciplinary proceedings like those at issue here, there are three due
process requirements:
the inmate must receive: (1) advance written notice of the disciplinary charges; (2)
an opportunity, when consistent with institutional safety and correctional goals, to
call witnesses and present documentary evidence in his defense; and (3) a written
statement by the factfinder of the evidence relied on and the reasons for the
disciplinary action.
Mitchell, 80 F.3d at 1445 (quoting Superintendent, Mass. Correctional Inst. v. Hill, 472 U.S. 445,
454 (1985)).
Plaintiff does not allege he was provided inadequate notice of the termination proceedings.
However, he does allege that he was prohibited from calling witnesses. An “inmate facing
disciplinary proceedings should be allowed to call witnesses and present documentary evidence in
his defense.” Wolff v. McDonnell, 418 U.S. 539, 566 (1974). Moreover:
Ordinarily, the right to present evidence is basic to a fair hearing; but the
unrestricted right to call witnesses from the prison population carries obvious
potential for disruption and for interference with the swift punishment that in
individual cases may be essential to carrying out the correctional program of the
institution.
Id. Defendants do not dispute that Plaintiff was not permitted to call witnesses, nor do they allege
that Plaintiff’s witnesses would have caused disruption. However, the Parties agree that Plaintiff
was permitted to submit witness letters. Nonetheless, I do not believe such letters satisfy Wolff’s
requirement of calling witnesses. E.g., Neal v. Shimoda, 131 F.3d 818, 830–31 (9th Cir. 1997).
Further, Wolff requires that the “decisionmaker must be impartial.” Gwinn v. Awmiller, 354
F.3d 1211, 1219 (10th Cir. 2004); see Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)
(recognizing due process requirement of factfinder’s neutrality in prison disciplinary context and
citing Wolff). Plaintiff alleges, and Defendants do not dispute, that three members of the prison’s
SOTMP conducted the hearing. Especially in light of the allegations of First Amendment
retaliation, alleged derogatory statements about Plaintiff’s Christian religion, and direct criticism
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of his writing grievance letters, it appears that a hearing presided over by members of the same
team may not meet the neutrality requirement. I find that, at this stage of litigation, allegations
concerning the lack of neutrality and witnesses are enough for Plaintiff to state a claim under Wolff.
B. Substantive Due Process
As noted above, Plaintiff had a protectable liberty interest in the receipt of SOTMP treatment.
Firth, 496 F. App’x at 785. Beyond being entitled to notice and a right to be heard, “the Due
Process Clause contains a substantive component that bars certain arbitrary, wrongful government
actions ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v. Burch,
494 U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)). “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). In the context of this case, “substantive due process ensures the state will not
deprive [Plaintiff] of [a liberty interest] for an arbitrary reason regardless of the procedures used
to reach that decision.” Hyde Park Co. v. Santa Fe City Council, 226 F.3d 1207, 1210 (10th Cir.
2000). “Executive action violates substantive due process when it ‘can properly be characterized
as arbitrary, or conscience shocking, in a constitutional sense.’” Brown v. Montoya, 662 F.3d 1152,
1172 (10th Cir. 2011) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840 (1998)). To satisfy
the “shocking” requirement, a plaintiff must show “a degree of outrageousness and a magnitude
of potential or actual harm that is truly conscience shocking.” Uhlrig v. Harder, 64 F.3d 567, 574
(10th Cir. 1995). “Behavior under this standard is ‘viewed in total’—'the cumulative impression
of [the] conduct should be considered.’” Hunt v. Montano, 39 F.4th 1270, 1281 (10th Cir. 2022)
(quoting Currier v. Doran, 242 F.3d 905, 920 (10th Cir. 2001)).
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Viewing Plaintiff’s FAC cumulatively, I believe the substantive due process claim evades
dismissal at the pleading stage. In a recent case, another judge in this District noted that “[t]he
deprivation [of Plaintiff’s liberty] would without doubt be conscience-shocking if CDOC’s
administration of the SOTMP did in fact permanently prevent an inmate from ever becoming
effectively eligible for parole.” Tillery v. Raemisch, No. 16-cv-0282-WJM-STV, 2018 WL
4777411, at *8 (D. Colo. Oct. 3, 2018); cf. Brown v. Chandler, 111 F. App’x 972, 976 (10th Cir.
2004) (An inmate who has a liberty interest may be able to “establish a procedural due process
violation if he could have shown that defendants permanently revoked” his vested rights.). This is
exactly what Plaintiff has alleged here: that absent abandoning his Christian beliefs, he will never
be eligible for parole. His FAC paints a picture of an inmate embroiled in a war of words with the
SOTMP team, the latter attacking Plaintiff for his expression of faith and for daring to challenge
them in his grievances. If true, the cumulative impression left by the FAC rises to the level of
conscience shocking. To be sure, the FAC also includes statements by the SOTMP team regarding
conduct by Plaintiff that this Court believes could serve as a legitimate basis for his removal from
the program. Further, the Motion provides credible argument that, at the summary judgment stage,
may place Plaintiff’s claims in jeopardy. But that is a record that must wait to be developed.
Accordingly, I recommend that the Motion be denied as to Claim Two to the extent that it
asserts violations of procedural and substantive due process under the Fifth and Fourteenth
Amendments.
C. Eighth Amendment: Cruel and Unusual Punishment by Deliberate Indifference
As stated earlier, “[i]n the prison context, substantive due process rights ‘are essentially
coextensive with Eighth Amendment prohibitions against cruel and unusual punishment.’” Allen,
930 F. Supp. 2d at 1269–70; see Whitley v. Albers, 475 U.S. 312, 327 (1986); see also Brown, 111
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F. App’x at 976 (“[U]nless [an inmate] can demonstrate that he has been subjected to cruel and
unusual punishment, [he] cannot show that his substantive due process rights were violated.”).
Because I have found that Plaintiff sufficiently pleads a violation of his substantive due process
rights, I also recommend that the Motion be denied as to Claim Three, his Eighth Amendment
claim.
III. 	Claim Four: Section 1985(3) Civil Conspiracy and Equal Protection
In Claim Four, Plaintiff alleges a conspiracy under 42 U.S.C. § 1985(3) to violate his
constitutionally protected right of freedom of religion. “The essential elements of a § 1985(3) claim
are: (1) a conspiracy; (2) to deprive plaintiff of equal protection or equal privileges and immunities;
(3) an act in furtherance of the conspiracy; and (4) an injury or deprivation resulting therefrom.”
Tilton v. Richardson, 6 F.3d 683, 686 (10th Cir. 1993) (citing Griffin v. Breckenridge, 403 U.S.
88, 102–03 (1971)). Section 1985(3) applies “only to conspiracies motivated by ‘some racial, or
perhaps otherwise class-based, invidiously discriminatory animus.’” Id. (quoting Griffin, 403 U.S.
at 101–02). In Taylor v. Gilmartin, 686 F.2d 1346, 1357 (10th Cir. 1982), the court held that the
language of Section 1985(3) “clearly encompasses an ‘irrational and odious class discrimination
based on national origin or religion.’” (quoting Arnold v. Tiffany, 359 F. Supp. 1034, 1036 (C.D.
Cal.), aff’d on other grounds, 487 F.2d 216, 218 (9th Cir. 1973), cert. denied, 415 U.S. 984 (1974));
see also Miami Int’l Realty Co. v. Town of Mt. Crested Butte, Colo., 579 F. Supp. 68, 76 (D. Colo.
1984) (“Other classes which courts have found sufficiently invidious for § 1985(3) purposes
include: gender, national origin, political association and religious affiliation.”).
To satisfy the conspiracy element of Section 1985(3), Plaintiff must allege that Defendants
acted to deprive him of his equal protection rights based on “a meeting of the minds” or agreement.
Hinsdale v. City of Liberal, 19 F. App’x 749, 770 (10th Cir. 2010); see also McKenzie v. City &
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Cnty. of Denver, No. 21-cv-00833-PAB-STV, 2023 WL 5488465, at *30 (D. Colo. July 21, 2023),
report and recommendation adopted, No. 21-cv-00833-PAB-STV, 2023 WL 5485625 (D. Colo.
Aug. 24, 2023). Further, “[p]arallel action . . . or inaction . . . does not necessarily indicate an
agreement to act in concert.” Salehpoor v. Shahinpoor, 358 F.3d 782, 789 (10th Cir. 2004) (citing
Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1361 (10th Cir. 1989)).
The allegations in the FAC appear to allege a somewhat uniform message and attitude of
the SOTMP team toward Plaintiff, not merely parallel action. The FAC paints a clear enough
picture that those involved with the SOTMP treatment itself and those present at the termination
hearing are working together to some extent. I must repeat that at the pleading stage, I am required
to construe Plaintiff’s allegations liberally. McNellis v. Douglas Cnty. Sch. Dist., 116 F.4th 1122,
1130 (10th Cir. 2024). I must “review the complaint for plausibility; that is, to determine whether
the complaint includes enough facts to state a claim to relief that is plausible on its face.” Young
v. Davis, 554 F.3d 1254, 1256 (10th Cir. 2009). “Plausible” in this context does not mean “likely
to be true,” but rather refers “to the scope of the allegations in a complaint.” Silver v. Glass, 459
F. App’x 691, 695 (10th Cir. 2012). I believe Plaintiff’s factual averments go slightly beyond
simple conclusory allegations when taken in sum, nudging this claim “across the line from
conceivable to plausible.” Twombly, 550 U.S. at 547 (2007).
For these reasons, I recommend the Motion be denied as to Claim Four of civil conspiracy
under Section 1985(3).
IV. 	Prison Litigation Reform Act
Defendants assert that under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e),
Plaintiff must allege a physical injury in order to recover compensatory damages. They are correct.
“[W]e have interpreted this statute to limit a prisoner’s remedies ‘if the only injuries are mental or
emotional.’” Allen v. Reynolds, 475 F. App’x 280, 284 (10th Cir. 2012) (citation omitted). The list
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of injuries Plaintiff pleads all appear to be physical manifestations of emotional harm. ECF 4 at
23. “While plaintiff argues that he suffered ‘physical injuries,’ he defines such injuries as the
physical manifestations of his mental health disorders. . . . These allegations are insufficient to
withstand the ‘physical injury’ requirement of Section 1997e(e).” Hall v. Elbe, No. 18-cv-01056-
PAB-NRN, 2022 WL 16855691, at *13 (D. Colo. Nov. 9, 2022). The PLRA permits recovery of
nominal damages, declaratory and injunctive relief, and punitive damages. Searles v. Van Bebber,
251 F.3d 869, 881 (10th Cir. 2001) (punitive damages); Perkins v. Kansas Dep’t of Corr., 165
F.3d 803 (10th Cir. 1999) (declaratory and injunctive relief and nominal damages). Not
surprisingly, Plaintiff does not respond to the PLRA argument. See ECF 42.
Therefore, to the extent Plaintiff brings a request for compensatory damages,1 I recommend
the Motion be granted to dismiss such requests based on an absence of physical injury as defined
by the PLRA.
V. 	Official Capacity Claims
Defendants argue that to the extent Plaintiff brings claims for monetary damages against
Defendants in their official capacity, the Eleventh Amendment bars the claims. I agree with
Defendants; the only situations where state officials can be sued in their official capacities for
monetary damages in federal court are: (1) where the state unequivocally waived its immunity, or
(2) Congress expressly abrogated the state’s immunity. Pennhurst State Sch. & Hosp. v.
Halderman, 465 U.S. 89, 99 (1984). The State of Colorado has not waived its Eleventh
Amendment immunity. Griess v. State of Colo., 841 F.2d 1042, 1044 (10th Cir. 1988). Congress
also did not abrogate the states’ immunity in 42 U.S.C. § 1983. Ellis v. Univ. of Kansas Med. Ctr.,
1 Defendants also make arguments concerning the scope of any available injunctive relief, but I
believe the parameters of what this Court can order in that regard should await another day.
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163 F.3d 1186, 1196 (10th Cir. 1998). Thus, Plaintiff is barred from seeking monetary damages
from Defendants in their official capacities. See, e.g., Gray v. Univ. of Kansas Med. Ctr., Coll. of
Health Scis., Sch. of Nursing, 715 F. Supp. 1041, 1043 (D. Kan. 1989) (“In the present lawsuit,
plaintiff seeks both monetary damages and injunctive relief against the defendants. Under the
doctrine of eleventh amendment immunity, the individual defendants are immune from suit against
them for the claims against them in their official capacity seeking monetary damages.”).
Accordingly, I recommend that the Motion be granted to the extent that the FAC asserts
claims for monetary relief against Defendants in their official capacities.
VI. 	Qualified Immunity
Defendants assert qualified immunity from Plaintiff’s claims. “When a defendant raises
the qualified-immunity defense, the onus is on the plaintiff to demonstrate (1) that the official
violated a statutory or constitutional right, and (2) that the right was clearly established at the time
of the challenged conduct.” Cummings v. Dean, 913 F.3d 1227, 1239 (10th Cir. 2019) (quoting
Quinn v. Young, 780 F.3d 998, 1004 (10th Cir. 2015) (emphasis added) (quoting Ashcroft v. al-
Kidd, 563 U.S. 731, 735 (2011)) (cleaned up). Defendants address only the first prong of the
analysis: whether Plaintiff sufficiently pleaded an alleged violation of a statutory or constitutional
right. They do not argue whether the rights asserted by Plaintiff were clearly established at the
time of the challenged conduct.
Thus, because I have already found that Plaintiff has adequately pleaded several such
violations (at least at this stage of the litigation), I recommend that the Motion be denied on the
issue of qualified immunity. See Halik v. Brewer, No. 21-CV-00508-PAB-NYW, 2022 WL
897105, at *4 (D. Colo. Mar. 28, 2022) (“[D]efendant’s qualified immunity analysis in his motion
to dismiss is too meager and perfunctory to be considered “adequately presented.”).
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CONCLUSION
I respectfully RECOMMEND2 that Defendant’s Motion be GRANTED IN PART and
DENIED IN PART. ECF 35.
I recommend denying the Motion as to Claims One, Two, Four, and Five, as described
herein.
I recommend denying the Motion as to Claim Three to the extent that it asserts violations
of the Fifth and Fourteenth Amendments. However, I recommend granting the Motion as to Claim
Three to the extent that it can be read to meaningfully assert a Sixth Amendment violation and
denying with prejudice such a claim.
I recommend granting the Motion insofar as the FAC seeks compensatory damages not
permitted under PLRA for lack of physical injury. Moreover, I recommend granting the Motion
insofar as it seeks monetary relief from Defendants in their official capacities.
Entered and dated at Denver, Colorado, this 12th day of November, 2024.
BY THE COURT:
Michael E. Hegarty
Chief United States Magistrate Judge
2 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any
written objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings
or recommendations to which the objections are being made. The District Court need not consider
frivolous, conclusive or general objections. A party’s failure to file such written objections to
proposed findings and recommendations contained in this report may bar the party from a de novo
determination by the District Judge of the proposed findings and recommendations. United States
v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file
written objections to the proposed findings and recommendations within fourteen (14) days after
being served with a copy may bar the aggrieved party from appealing the factual findings and legal
conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.
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Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656, 659
(10th Cir. 1991)).
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