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C.M. v. Burns

United States District Court, D. Colorado

March 19, 2014

C.M., Plaintiff,
JAN BURNS, in her personal capacity, CHRISTOPHER URBINA, in his personal capacity, NANCY WOLFF, in her personal capacity, PATRICIA MOSHURE, in her personal capacity, RACHELLE BOESPFLUG, in her personal capacity, MELISSA EVERTS, in her personal capacity, CHRIS BUGECKI, in his personal capacity, JASON JOHNSON, in his personal capacity, WES KUFELD, in his personal capacity, JANE DOE, in her personal capacity, and JOHN DOE, in his personal capacity, Defendants.


R. BROOKE JACKSON, District Judge.

This matter is before the Court on defendant Jan Burns' Motion to Strike Portions of Plaintiff's Amended and Supplemental Complaint [Doc. #31] and her Motion to Dismiss Plaintiff's Amended Complaint [Doc. #32]. Both motions are hereby granted for the reasons set forth below. The Court sua sponte strikes the remainder of Plaintiff's Amended and Supplemental Complaint for failure to comply with Fed.R.Civ.P. 8(a)(2), with leave to file a Second Amendment Complaint.


C.M. is a registered sex offender in the State of Colorado. He is currently serving a 25-year probationary sentence after pleading guilty to two counts of sexual assault on a child in 2002. His terms of probation include a requirement that he be in a treatment program through the Sex Offender Management Board ("SOMB"). Until October 2011, C.M. was enrolled in a program he refers to as the SOMB Treatment Provider number 1.

C.M. became infected with HIV approximately ten years ago and has been on antiviral medications to treat its symptoms. In the summer of 2006, during a routine test for sexually transmitted diseases, C.M. discovered that he tested positive for chlamydia. At the time he did not exhibit any typical signs or symptoms of the infection, and he was treated with a traditional single dose antibiotic treatment. Later in 2006, C.M. again developed signs and symptoms of chlamydia. According to C.M., he had not engaged in any type of sexual activity since being diagnosed with chlamydia earlier that year. Instead, it appeared that the single dose antibiotic had not worked. He went to Planned Parenthood where he was again prescribed the single dose antibiotic treatment.

After several months of waxing and waning symptoms, C.M. went to his primary care physician. He was informed that it was possible for a person with HIV taking antiviral medications to develop an antibiotic resistant strain of chlamydia. He was then treated with a multi-pill per day, week long antibiotic therapy that killed the infection.

Under Colorado law, a positive test result for chlamydia may be required to be reported to the Colorado Department of Public Health and Environment ("CDPHE") pursuant to C.R.S. § 25-1-122. A positive test result for HIV must be reported to CDPHE pursuant to C.R.S. § 25-4-1403. Based on these disclosures-in particular the multiple diagnoses of chlamydia-C.M. believes that various officers and employees of CDPHE incorrectly assumed that he was repeatedly engaging in unprotected sexual relations. These employees made attempts to reach out to C.M. about their concern, which resulted in a meeting between C.M. and Pat Moshure, a CDPHE employee, on May 14, 2010.

C.M. informed Ms. Moshure that the repeated chlamydia diagnoses were due to an antibiotic resistant strain of chlamydia, not multiple infections from various partners. According to C.M., Ms. Moshure refused to listen or to consult with his primary care physician. Instead, C.M. felt that Ms. Moshure was unduly focused on his status as a registered sex offender, which she discovered when trying to locate his mailing address.

On May 19, 2010, Ms. Moshure and C.M. had a second meeting. According to C.M., Ms. Moshure demanded that he provide a release of information to permit CDPHE to exchange information regarding C.M.'s HIV status with the Offender Group at the SOMB Treatment Provider number 1. C.M. refused. At this time, Ms. Moshure gave C.M. the option of being given a Public Health Order pursuant to CRS 25-4-1406 or being ordered into counseling with Jan Burns.[1] C.M. chose to undergo ten counseling sessions with Ms. Burns.

Ms. Burns is a private licensed clinical social worker who contracts with CDPHE to provide counseling services for individuals with HIV. She also works through CareNet as a SOMB treatment provider. According to C.M., Ms. Moshure chose Ms. Burns as his counselor because of these dual roles, since C.M. was also a sex offender in a SOMB treatment program. Yet, these ten sessions were to be provided from Ms. Burns through her role as a CDPHE contractor.

In June 2010, Ms. Burns and C.M. met for their first and only session. During the session, Ms. Burns allegedly asked C.M. to execute a blank release of information form. According to C.M., Ms. Burns wanted to be able to speak to C.M.'s probation officer, SOMB Treatment Provider number 1, and anyone else she deemed necessary. C.M. felt that this would breach Ms. Burns' duty of confidentiality, that her request was unethical, and that it was unlawful for her to condition counseling on a blanket waiver of confidentiality. He alleges that Ms. Burns warned him that if he did not sign and undergo counseling, CDPHE would issue a Public Health Order. C.M., on the other hand, contended that the reason he was seeking treatment from her was separate from and independent of his treatment with SOMB Treatment Provider number 1. He refused to sign the waiver, and the session ended.

C.M. asserts that Ms. Burns was intoxicated during the meeting, and he details the factors that caused him to reach that conclusion. [Doc. #33 at ¶ 29].

On July 12, 2010, Ms. Burns submitted a letter to CDPHE discussing why she needed a blanket release of information from C.M. She took the position that the SOMB guidelines require this blanket waiver of confidentiality when she acts as a SOMB treatment provider. C.M. argues that in her role as CDPHE contractor, as opposed to her role as a CareNet employee, Ms. Burns was not permitted to ask for such a release or to share his confidential information. According to C.M., nothing should have prevented Ms. Burns from counseling him without this release.

C.M. alleges that CDPHE officials then sought to compel him to undergo counseling by issuing a Public Health Order. The Public Health Order was served on C.M.; and when he refused to comply with its terms, CDPHE took him to court. On July 14, 2011, a judge in the Denver District Court held a hearing on the Public Health Order. During that hearing, C.M. argued that Ms. Burns had been unethical in attempting to obtain his signature on a blanket release form.

According to C.M., this statement prompted Ms. Burns to retaliate against him by sending a fax containing confidential medical information to the Arapahoe County Probation Department on August 24, 2011. The fax purportedly disclosed C.M.'s HIV status, made false allegations that C.M. had failed to disclose his HIV status to sexual partners, and made false ...

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