United States District Court, D. Colorado
[Copyrighted Material Omitted]
For Charles Reinhardt, Roseanne Bernard, Laura Bertrand, Noel Bertrand, Robert Garrett, Carole Garrett, William Hart, Michelle Davis, Loretta Marsh, Donna Mills, Rodel Miranda, Jane Roe, by her next friend and mother Jane Roe, other K.O.B., other M.E.B., other A.M.B., other E.M.B., Richard Burns, Kathy Roe, by his next friend and mother Kathy Roe, other J.D., other E.D., other M.D., Cherry Fisher, Glenn Fisher, Armando Gonzalez-Castillo, Nikolas Winder, J.F., by and through his next friend Cherry Fisher, Scott Winder, L.F., by and through her next friend Cherry Fisher, T.J.B., by and through his next friend Staci McCoy, David Murray, Baruch Bachofer, S.R.B., by and through her next friend Staci McCoy, Danny Daniels, Sr., Cesar Aceves, Josie Amaya, J.H., L.B., Brian Baetz, Ronald Murray, S.D., Robert Herdman, A.D., Plaintiffs: Alison Lee Ruttenberg, Alison L. Ruttenberg, Attorney at Law, Boulder, CO.
For Marcelo Kopcow, in his official capacity as SOMB Board Member, Erin Jemison, in her official capacity as SOMB Board Chair Mary Baydarian, in her official capacity as SOMB Board Member Carl Blake, in his official capacity as SOMB Board Member Allison Boyd, in her official capacity as SOMB Board Member A. Mervyn Davies, in his official capacity as SOMB Board Member Cheryl Davies, in her official capacity as SOMB Board Member Jessica Curtis, in her official capacity as SOMB Board Member Amy Fitch, in her official capacity as SOMB Board Member Jeff Geist, in his official capacity as SOMB Board Member Missy Gursky, in her official capacity as SOMB Board Member Peggy Heil, in her official capacity as SOMB Board Member William Hildebrand, in his official capacity as SOMB Board Member Nancy Johnson, in her official capacity as SOMB Board Member Jeff Jenks, in his official capacity as SOMB Board Member Dianna Lwyer-Brook, in her official capacity as SOMB Board Member Tom Leversee, in his official capacity as SOMB Board Member Richard Bednarski, in his official capacity as SOMB Board Member John Odenheimer, in his official capacity as SOMB Board Member Jessica Meza, in her official capacity as SOMB Board Member Angel Weant, in her official capacity as SOMB Board Member Mimi Scheuermann, in her official capacity as SOMB Board Member Doug Stephens, in his official capacity as SOMB Board Member and John and Jane Does 1-20 in their personal capacities, Defendants: Ingrid Carlson Barrier, Colorado Attorney General's Office, Ralph L. Carr Colorado Judicial Center, Denver, CO.
For Rick Raemisch, in his official capacity as the Executive Director of the Colorado Department of Corrections, Defendant: Christopher Wayne Alber, James Xavier Quinn, Colorado Attorney General's Office, Ralph L. Carr Colorado Judicial Center, Denver, CO.
For Andrea Bennett-Baily, Sheila Montoya, official Capacity, Defendants: William V. Allen, Colorado Attorney General's Office, Ralph L. Carr Colorado Judicial Center, Denver, CO.
For Rae (I) Timme, Defendant: Christopher Wayne Alber, Colorado Attorney General's Office, Ralph L. Carr Colorado Judicial Center, Denver, CO.
ORDER GRANTING IN PART AND DENYING IN PART THE STATE DEFENDANTS' MOTION TO DISMISS
William J. Martínez, United States District Judge.
This action, brought under 42 U.S.C. § 1983, relates to the state of Colorado's treatment of persons convicted of sex crimes. Plaintiffs, who are inmates, parolees, and probationers of the Colorado Department of Corrections (" CDOC" ) and their family members (collectively " Plaintiffs" ), allege that Defendants, who are employed by the CDOC or are members of the Sex Offender Management Board (" SOMB" ), violated their First, Fourth, Fifth, and Fourteen Amendment rights. (Sec. Am. Compl. (" SAC" ) (ECF No. 81.) Plaintiffs seek monetary damages for the harms they have allegedly incurred, as
well as injunctive and declaratory relief. ( Id.)
Before the Court is the Motion to Dismiss (" Motion" ) filed by the members of the SOMB, as well as by Rick Raemisch, in his capacity as Executive Director of CDOC, and Rae Timme, Tori Kelly, Sheila Montoya, and Andrea Bennett-Bailey, who are all employed by the CDOC (collectively " Defendants" ). (ECF No. 118.) For the reasons set forth below, Defendants' Motion is granted in part and denied in part.
I. LEGAL STANDARD
Defendants bring the instant Motion pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6). (ECF No. 118.)
Rule 12(b)(1) empowers a court to dismiss a complaint for " lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction " must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." See Basso, 495 F.2d at 909.
Under Rule 12(b)(6), a defendant may move to dismiss a claim in a complaint for " failure to state a claim upon which relief can be granted." In evaluating such a motion, a court must " assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is " whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss " is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). " Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs' Second Amended Complaint is seventy-five pages long, and contains 98 numbered paragraphs. (ECF No. 81.) In the interest of efficiency and judicial economy, the Court will set forth below only those facts relevant to the issues raised in the Motion.
The Plaintiffs in this case fall into three categories: (1) inmates of the Colorado Department of Corrections who have been classified as sex offenders; (2) parolees and probationers who are mandated to participate in sex offender treatment and therapy; and (3) immediate family members of those inmates, parolees, and probationers. (SAC ¶ 3.) Defendants are the members of the SOMB and various employees of the CDOC who are responsible for devising, implementing, and enforcing
policies governing inmates, parolees, and probationers who are classified as sex offenders. ( Id. ¶ ¶ 4-11.)
The SOMB has promulgated guidelines which apply to any inmate, parolee, or probationer that meets the SOMB's definition of a " sex offender" . (SAC ¶ 8(b).) The SOMB is the final policymaking authority for the State of Colorado's policies governing treatment and behavioral monitoring of sex offenders who are incarcerated in the CDOC, on parole, or on probation. ( Id. ¶ 8(c).) Amongst these policies are the following:
o A restriction that no sex offender may have any visitation or telephone contact with anyone under the age of eighteen (including their own children and grandchildren), may not have pictures of children in their cell, house or residence, and may not discuss their children with spouses or other family members. ( Id. ¶ 9(a).)
o A restriction that a sex offender on parole or probation may not live in his own home if there are any children under the age of eighteen. ( Id. ¶ 9(b).)
o The requirement that all sex offenders participate in " therapy" , which requires them to admit to or accept responsibility for all of the alleged victims' original allegations, even if their case is on direct appeal. ( Id. ¶ 9(c).)
o If a sex offender refuses to participate in therapy, including the requirement to admit or accept responsibility for his alleged offenses, that offender is placed on restricted privileges and is required to wear an orange jumpsuit, is not permitted to talk to any family members on the telephone, has limited canteen privileges, and has no access to the gym, television, radio, or any hobby items. ( Id.) Inmates on restricted privileges are also have their religious services limited, may only have visitation for two hours a month, and have only one hour per week in the exercise yard. ( Id.)
o Probationers and Parolees who are required to live in a Shared Living Arrangement (" SLA" ) may not have any visitation or telephone contact with family members. ( Id. ¶ 9(e).)
Additionally, Defendants have an unwritten practice of applying these policies to anyone they deem a sex offender, even if the inmates' conviction for a sex offense has been vacated by the courts. (SAC ¶ 9(d).)
Plaintiffs have suffered in various ways under these policies. For example, Plaintiff Danny Daniels Sr. is imprisoned for an assault and menacing conviction, but is designated a sex offender based on an earlier conviction involving sex with a seventeen year old. (SAC ¶ 23.) Mr. Daniels is married and has five children with his wife; he has never been accused of any offense against his children. ( Id.) However, because of the challenged policies, Mr. Daniels has been denied all access to his children since 2007; he is unable to communicate with them in any way, unable to discuss their well-being with his wife, and unable to participate in family decisions. ( Id. ¶ 24.) Mr. Daniels is now on parole but, because of his sex offender classification, is unable to live at home with his family, and has spent months homeless. ( Id. ¶ 25.)
Plaintiff Ed Marsh was convicted of sex offenses and is designated a sexually violent predator. (SAC ¶ 27.) He is housed at Sterling Correctional Facility, a maximum security prison that does not offer sex offender therapy ...