Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Shields v. Duncan

United States District Court, D. Colorado

February 6, 2017

JONATHAN SHIELDS, STEVEN CHRISTIANSEN, ERIC PETERSEN, WESLEY SPECHT, and JESSICA SPECHT, Plaintiffs,
v.
JENNIFER DUNCAN, in her individual capacity as Jonathan Shields' parole officer, THERESA DAWES, in her individual capacity as Steven Christiansen's parole officer, SHEFALI PHILLIPS, in her official capacity as Eric Petersen's parole officer, RICK RAEMICSH, in an official capacity as Executive Director of the Colorado DOC, MARCELO KOPCOW, in an official capacity as SOMB Board Member, ERIN JEMISON, in an official capacity as SOMB Board Chair, MARY BAYDARIAN, in an official capacity as SOMB Board Member, CARL BLAKE, in an official capacity as SOMB Board Member, ALLISON BOYD, in an official capacity as SOMB Board Member, A. MERVYN DAVIES, in an official capacity as SOMB Board Member, CHERYL DAVIES, in an official capacity as SOMB Board Member, JESSICA CURTIS, in an official capacity as SOMB Board Member, AMY FITCH, in an official capacity as SOMB Board Member, JEFF GEIST, in an official capacity as SOMB Board Member, MISSY GURSKY, in an official capacity as SOMB Board Member, PEGGY HEIL, in an official capacity as SOMB Board Member, WILLIAM HILDEBRAND, in an official capacity as SOMB Board Member, NANCY JOHNSON, in an official capacity as SOMB Board Member, JEFF JENKS, in an official capacity as SOMB Board Member, DIANNA LWYER-BROOK, in an official capacity as SOMB Board Member, TOM LEVERSEE, in an official capacity as SOMB Board Member, RICHARD BEDNARSKI, in an official capacity as SOMB Board Member, JOHN ODENHEIMER, in an official capacity as SOMB Board Member, JESSICA MEZA, in an official capacity as SOMB Board Member, ANGEL WEANT, in an official capacity as SOMB Board Member, MIMI SCHEUERMANN, in an official capacity as SOMB Board Member, DOUG STEPHENS, in an official capacity as SOMB Board Member, BRANDON SHAFFER, in an official capacity as Colorado Parole Board Member, REBECCA OAKES, in an official capacity as Colorado Parole Board Member, DENISE BALAZIC, in an official capacity as Colorado Parole Board Member, ALFREDO PENA, in an official capacity as Colorado Parole Board Member, and MARJORIE LEWIS, in an official capacity as Colorado Parole Board Member, Defendants.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Michael E. Hegarty, United States Magistrate Judge.

         Before the Court is the Defendants' renewed Motion to Dismiss [filed October 31, 2016; ECF No. 204]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the motion has been referred to this Court for recommendation. The motion is fully briefed, and the Court finds that oral argument would not materially assist in the adjudication of the matters. For the reasons that follow, this Court respectfully recommends that Defendants' Motion be granted in part and denied in part.[1]

         BACKGROUND

         Plaintiffs (above-captioned) assert that the State of Colorado's Sex Offender Management Board's (“SOMB”) treatment of sex offenders (incarcerated, paroled or discharged from parole) violates the Plaintiffs' constitutional rights to familial association. Plaintiffs, who are self-described “sex offenders” or family of the same, allege that the SOMB applies a blanket prohibition against any sex offender having any contact with a “victim” or anyone under the age of 18 (even the sex offender's own children and grandchildren), and precludes indirect or third-party contact (so the sex offender is not allowed to talk to his spouse or adult children about his children or grandchildren).

         On October 23, 2015, this Court issued a recommendation that the Honorable Raymond P. Moore grant the Defendants' motion to dismiss the operative Third Amended Complaint (“TAC”). ECF No. 162. In that recommendation, this Court set forth the background of the case. Id. Then, in Judge Moore's October 13, 2016 order adopting in part and rejecting in part the recommendation, the judge described a comprehensive, updated background and procedural history of the case. ECF No. 201. Accordingly, the Court need not repeat that information here.

         Since Judge Moore's order, the Plaintiff filed a Notice of Voluntary Dismissal of Plaintiffs Kerns, Spitz, and Cooley and Defendants Sage and Tate. ECF No. 216. Accordingly, this Court has modified the case caption and will proceed to determine the claims and defenses of the remaining parties as set forth in the motion and attendant briefing.

         I. Statement of Facts

         The following are factual allegations (as opposed to legal conclusions, bare assertions, or merely conclusory allegations) made by the Plaintiffs in the TAC.[2] See TAC, ECF No. 102. The Court will address each Plaintiff in turn.

         A. Jonathan Shields

         Plaintiff Shields was a juvenile offender charged as an adult with sex offenses and other felonies in Adams County, Colorado, in 2002. TAC ¶ 18. Shields was a developmentally disabled child who experienced brain damage while riding his bicycle in 2001; the next year, when babysitting his younger cousins and after having been given marijuana by his cousins' father, he was accused of having sexually abused his cousins. Id. ¶19. He pled guilty to Fourth Class Felony Sex Assault against a Child and a misdemeanor sex offense in exchange for a deferred sentence. Id. ¶ 20. He failed to successfully complete the deferred judgment so was sentenced to two years to life in the DOC in 2012. Id. Shields was paroled in 2012 after successfully completing sex offender treatment. Id. ¶ 21. Defendant Jennifer Duncan was assigned to be Shields' parole officer. Id. ¶ 22. Shields used his brother's cell phone to send a text, and that cell phone contained a history of having viewed websites that could be considered pornographic. Id. Use of that cell phone along with contact with a family friend who, unbeknownst to Shields, had a felony record led to Duncan's request to rescind his parole, but the request was denied. Id.

         Shields then again entered sex offender treatment, but the treatment provider terminated him because he could not pay for the service, so Shields was arrested and charged with parole violations. Id. ¶¶ 23-24. His parole was then revoked in March 2014 and he returned to the DOC. Id. ¶ 25. He was released from the DOC on July 29, 2014 without any clothes, money, identification or transportation and was expected to fend for himself. Id. ¶ 27. Duncan told him he was not permitted to go anywhere except the parole office, his sex offender treatment office, the place where he provided urine samples, and the office where his ankle monitor was installed. Id. ¶ 29. In addition, Duncan ordered Shields to live in a room at the Carriage Inn, “a dive motel, in an extremely dangerous neighborhood” where he “was covered in bed bug bites” and experienced other squalid conditions. Id. ¶ 28. He was also not allowed to have contact with his parents. Id. ¶ 29. Duncan's and the parole board's position was that the SOMB standards require that these restrictions be placed on Shields. Id. ¶ 30. After the filing of this lawsuit, Duncan removed the restriction that Shields could not have contact with his parents. Id.

         B. Steven Christiansen

         Plaintiff Christiansen was charged with various sex offenses that allegedly occurred in May 1998. TAC ¶ 33. On June 8, 2004, Christiansen was sentenced to a single count of Fourth Class Felony Sex Assault on a Child. Id. He completed his sentence at the DOC and his mandatory parole, but was required to continue to register as a sex offender. Id. ¶¶ 33-34. He has been accused several times of failing to register and, in December 2013, was sentenced to nine months in the DOC after pleading guilty to this charge in Adams County. Id. ¶ 34. At the time, Christiansen had a ten-week-old child, but there is no allegation he committed sexually inappropriate conduct against her or anyone else since the 1998 allegations. Id.

         Upon his parole, Christiansen was not allowed to have contact with any person under the age of 18, including his own child, based on SOMB guidelines. Id. Defendant Theresa Dawes served as Christiansen's parole officer and directed that he was prohibited from living with his wife and daughter. Id. Christiansen thus was directed by Dawes to live in a Motel 9, “another dive motel in an extremely dangerous neighborhood on East Colfax in a room that is infested with rodents and other vermin, ” where he experienced uninhabitable conditions. Id. ¶ 42. Because of his sex-offender designation, the parole board and Dawes used SOMB standards to prohibit Christiansen from having any verbal or physical contact with his daughter. Id. ¶ 44.

         C. Eric Petersen

         Plaintiff Petersen was convicted of sex assault on a child and sentenced to two years to life in the DOC in April 2003 for a 1999 offense of kissing and fondling the breast of his roommate's 14-year-old babysitter in Arapahoe County, Colorado. Id. ¶ 61. He had volunteered to drive the babysitter home, during which time he allegedly committed the criminal act. Id. He received a deferred sentence of four years probation for Sexual Assault on a Child and 12 years probation for Second Degree Kidnapping, with sentences running concurrently. Id. While on probation, Petersen moved in with a woman who had a minor child, resulting in Petersen's arrest and loss of his deferred judgment. Id. ¶ 62. The woman was, at the time, already pregnant with Petersen's daughter. Id. He was resentenced in April 2003 to two years to life in the DOC. Id. His daughter was born in May 2003 while he was in prison, and he has not been allowed to meet her. Id.

         While incarcerated in the DOC, Petersen completed sex offender treatment and participated in treatment for four of the seven years he was incarcerated. Id. ¶ 63. He did not pass required polygraph examinations as required by the SOMB, so he was terminated from DOC treatment. Id. He also has failed 12 polygraph examinations while on parole. Id. ¶ 69. His parole officer, Defendant Shefali Phillips, determined that SOMB regulations would require Petersen to be placed in community corrections and have his liberty restricted if he continued to fail these polygraph examinations. Id. ¶ 70. When he was paroled, he was allowed to have four pictures of his daughter but no other contact. Id. ¶ 64. He also was prohibited from contact with his six nieces and nephews. Id. ¶ 65.

         D. Wesley Specht and Jessica Specht

         Plaintiff Specht was a coach at a Jefferson County high school when charged with sex assault on a child by one in a position of trust and other related offenses for allegedly having sexual contact with three teenaged girls at the high school. TAC ¶ 71. A jury convicted him of one count of sexual assault on a child by one in a position of trust on a victim who was 17-years-old at the time and “always claimed that the relationship was consensual.” Id. He was sentenced in July 2012 to 12 years to life in DOC. Id. Specht's conviction is currently on direct appeal. Id.

         Specht married his victim, Plaintiff Jessica Specht, when she was 19-years-old via a proxy marriage in which neither was in the presence of the other. Id. ¶ 72. The DOC has denied Mr. Specht all visitation with his wife and anyone under the age of 18 (id. ¶ 74) based on the SOMB policy that “sex offenders may never have any contact with anyone designated as a ‘victim' of sexual assault by the offender or contact with anyone who is under the age of 18.” Id. ¶ 75. On March 19-20, 2015, a Specht family friend, Jessica Zanghi, personally talked to Warden Miller at the Crowley County Correctional Facility who told her that Mr. Specht would never be permitted to have visitation with his wife or anyone under the age of 18. Id. ¶ 74. Mr. Specht has never been accused of any other sexual impropriety or crime and has never been accused of harming any children other than the children in Jefferson County case number 2011CR965. Id. ¶ 76.

         II. Procedural History

         Plaintiffs assert two causes of action against the State Defendants[3]: (1) declaratory and injunctive relief pursuant to 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments to the U.S. Constitution for denying rights to familial association; and (2) nominal, compensatory and punitive damages pursuant to 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth Amendments to the U.S. Constitution against the Defendants sued in their personal capacities. TAC, docket #102 at 56, 62. Plaintiffs confirm in their response brief that the First Claim is brought by Plaintiffs Petersen and the Spechts against the Defendants in their official capacities, and the Second Claim is brought by Plaintiffs Shields and Christiansen against Defendants Duncan and Dawes in their individual capacities. Resp. 1-3.

         In his October 13, 2016 order, Judge Moore rejected this Court's recommendation that Plaintiffs' claims be dismissed for this Court's lack of subject matter jurisdiction pursuant to the Younger doctrine and denied the Defendants' motion without prejudice . ECF No. 201. On October 31, 2016, the Defendants filed the present renewed motion arguing Plaintiff Petersen's First Amendment claim is barred by the statute of limitations; the familial association claims fail to state claims for relief; to the extent Plaintiffs seek declaratory and injunctive relief that is not ripe, the claims fail; and Plaintiffs Shields' and Christensen's Eighth Amendment claims fail to state plausible claims for relief.[4]

         Plaintiffs counter that Petersen's claim has not yet accrued because the alleged ongoing conduct has not yet ceased or, alternatively, the claim accrued in August 2014, and, thus, the statute of limitations does not bar his claim; under the governing law, the Plaintiffs' familial association claims cannot be resolved in a 12(b)(6) analysis; and, Plaintiffs plausibly state Eighth Amendment claims for deliberate indifference by the individual Defendants.

         Defendants reply repeating most of the original arguments and contending Plaintiffs' attempts to add “new” facts in their brief is improper.

         LEGAL STANDARDS

         “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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis. First, a court 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. Id. at 678-80. Second, the Court 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 680.

         Plausibility 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.'” Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The nature and specificity of the allegations required to state a plausible claim will vary based on context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while the Rule 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 the plaintiff has set forth a plausible claim. Khalik, 671 F.3d at 1191.

         The adequacy of pleadings is governed by Federal Civil Procedure Rule 8(a)(2), which requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). This rule “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal citations omitted). Determining whether the allegations in a complaint are “plausible” is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679. If the “well pleaded facts do not permit the court to infer more than the mere possibility of misconduct, ” the complaint should be dismissed for failing to “show[ ] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.

         ANALYSIS

         As set forth above, the Defendants raise the following arguments in support of their request to dismiss the TAC: (1) Petersen's First Amendment claim is barred by the statute of limitations; (2) the Plaintiffs' First Claim fails to state plausible claims for relief; (3) Shields' claim for injunctive relief is not ripe; and (4) Plaintiffs Shields' and Christiansen's Second Claim fails to state plausible claims for relief. The first three arguments address the Plaintiffs' First Claim against the official-capacity Defendants, and the fourth argument addresses the Second Claim against the individual-capacity Defendants. The Court will address each argument in turn.

         I. Statute of Limitations

         “Limitations periods in § 1983 suits are to be determined by reference to the appropriate state statute of limitations and the coordinate tolling rules ....” Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006) (quoting Hardin v. Straub, 490 U.S. 536, 539 (1989)) (quotations omitted). The limitations period applicable to this § 1983 suit is Colorado's two-year statute of limitations which bars suits filed more than two years after the time the cause of action accrued. Id. (citing Blake v. Dickason, 997 F.2d 749, 750-51 (10th Cir. 1993)); see also Colo. Rev. Stat. § 13-80-102. “A § 1983 action ‘accrues when facts that would support a cause of action are or should be apparent.'” Id. (quoting Fratus v. DeLand, 49 F.3d 673, 674-75 (10th Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.