United States District Court, D. Colorado
JONATHAN SHIELDS, STEVEN CHRISTIANSEN, ERIC PETERSEN, WESLEY SPECHT, and JESSICA SPECHT, Plaintiffs,
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
Michael E. Hegarty, United States Magistrate Judge.
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.
(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).
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.
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.
Statement of Facts
following are factual allegations (as opposed to legal
conclusions, bare assertions, or merely conclusory
allegations) made by the Plaintiffs in the TAC. See TAC,
ECF No. 102. The Court will address each Plaintiff in turn.
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.
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.
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.
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.
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.
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.
Wesley Specht and Jessica Specht
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
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.
assert two causes of action against the State
Defendants: (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.
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.
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.
reply repeating most of the original arguments and contending
Plaintiffs' attempts to add “new” facts in
their brief is improper.
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.
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.
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.
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.
Statute of 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. ...