United States District Court, D. Colorado
REPORT AND RECOMMENDATION ON DEFENDANT
MCELDERRY'S MOTION TO DISMISS (DKT. #15)
REID NEUREITER UNITED STATES MAGISTRATE JUDGE
case is before the Court pursuant to Defendant Maggie M.
McElderry's Motion to Dismiss (Dkt. #15), referred to me
by Judge Christine M. Arguello (Dkt. #19). The Court has
carefully considered the motion, Plaintiff's Opposition
to Defendant's Motion to Dismiss (Dkt. #21), and
Defendant's Supplement to the Motion to Dismiss (Dkt.
#24). The Court also has taken judicial notice of the
Court's file, considered the applicable Federal Rules of
Civil Procedure and case law, and heard argument by the
parties at a hearing held on February 12, 2019.
following reasons, the Court RECOMMENDS that Ms.
McElderry's Motion to Dismiss be GRANTED with respect to
Mr. Neilsen's Fourth Claim for Relief alleging
conspiracy, but DENIED in relation to Mr. Neilsen's
First, Second, and Third Claims for Relief.
otherwise noted, the following facts are taken from Mr.
Neilsen's Civil Rights Complaint with Request for Trial
by Jury (Dkt. #1), and are presumed to be true for purposes
of this Recommendation.
to commencing this lawsuit, Mr. Neilsen was in the custody of
the Colorado Department of Corrections (CDOC), and confined
at the Crowley County Correctional Facility (CCCF). He had
been sentenced to four years in prison after pleading guilty
to one count of sexual assault on a child, and having
judgment enter on one deferred count after he sought to
withdraw his plea. He currently is seeking post-conviction
relief “to prove his innocence” in relation to
the sexual assault conviction.
parole hearing in October 2016, Mr. Neilsen advised the
parole board that he was pursuing post-conviction relief. He
presented the parole board with a parole plan stating his
desire to parole at home with his wife and continue working
construction, while also pursuing a degree from Adams State
University. On October 17, 2016, the parole board granted Mr.
Neilsen's mandatory release under the following
conditions: (1) he present an adequate parole plan; (2) he
have a suitable parole sponsor (his wife); (3) he have
adequate housing/accommodations; and (4) he have adequate
work opportunities. The parole board also noted, in all
capital letters, that Mr. Neilsen “DENIES COMMITTING
ANY CRIMES AGAINST CHILDREN.”
Neilsen's mandatory release was scheduled to occur on
June 20, 2017, at which time he would have served three years
of his four-year sentence. Prior to June 20, 2017, Mr.
Neilsen met on several occasions with CCCF parole officer Ms.
McElderry, who was not his community parole officer, to
discuss the conditions of his upcoming mandatory release to
parole. During these discussions, Mr. Neilsen advised Ms.
McElderry that he was pursuing post-conviction relief and he
would agree to attend therapy sessions as required by a
community parole officer, but he would not admit guilt as to
any crimes against children.
McElderry, however, presented Mr. Neilsen with a parole
conditions agreement that required Mr. Neilsen to
“participate in a sex offender intake, evaluation and
successfully complete treatment at the discretion of the Sex
Offender Supervision Team.” (Dkt. #24-1 ¶ 24.)
This requirement was not among the conditions set forth by
the parole board. Mr. Neilsen, on more than one occasion,
advised Ms. McElderry that to “participate in”
and “successfully complete” sex offender
treatment would be incompatible with his right to pursue
post-conviction relief because, as a part of such treatment,
he would be required to admit guilt to a crime that he did
not commit. Mr. Nielsen therefore asserted his Fifth
Amendment right not to incriminate himself, and said he could
not agree to participate in and “successfully
complete” sex offender treatment.
Mr. Nielsen reiterated his position during a June 8, 2017
meeting, Ms. McElderry allegedly told Mr. Neilsen she would
not discuss legal issues with him, and that the parole
conditions agreement, including the requirement that he
participate in and complete sex offender treatment, was not
negotiable. After the meeting, Mr. Neilsen sent Ms. McElderry
a kite to confirm their discussion, including the invocation
of his Fifth Amendment privilege.
to Mr. Neilsen, during one of their meetings, he also asked
Ms. McElderry for a copy of the parole conditions agreement
so that he could send it to his attorney, but she denied this
request, saying he would only receive a copy of the agreement
after he had signed it. He alleges Ms. McElderry also would
not allow him to meet with his community parole officer, as
required by CDOC regulations.
Neilsen further alleges, in his opposition to Ms.
McElderry's motion to dismiss, that prior to his
mandatory release date, he gave Ms. McElderry a highlighted
copy of United States v. Von Behren, 822 F.3d 1139
(10th Cir. 2016). (Dkt. #21 at 3, 10, 12-13.) In Von
Behren, the Tenth Circuit Court of Appeals held that
requiring a parolee to participate in and successfully
complete a sex offender treatment program as a new and
modified condition of the parolee's supervised parole
violated the parolee's Fifth Amendment privilege against
self-incrimination because, as part of the program, the
parolee would be required to answer questions regarding
whether he had committed sexual crimes. The court
“conclude[d] that the government's threat to revoke
Mr. Von Behren's supervised release for his failure to
answer potentially incriminating questions rises to the level
of unconstitutional compulsion.” Id. at 1148.
20, 2017, Ms. McEdlerry did not allow Mr. Neilsen to be
released on parole because he refused to sign the parole
conditions agreement that included the requirement that Mr.
Neilsen participate in and successfully complete sex offender
treatment. Ms. McElderry filed a complaint against Mr.
Neilsen charging him with failure to “follow the
directives of and cooperate with the Community Parole
Officer” (i.e., he failed/refused to sign the parole
conditions agreement). Ms. McElderry had Mr. Neilsen arrested
on this charge, and he was taken to the Fremont County
Detention Center (FCDC), where he remained incarcerated for
an additional 28 days. After 28 days in the FCDC, the charge
against him was dismissed and Mr. Neilsen was released on
parole without having to agree to participate in or complete
sex offender treatment.
main thrust of Mr. Neilsen's complaint is that he was
denied parole and incarcerated in the FCDC for 28 days
because he refused to agree to an unconstitutional parole
condition. He even provided (allegedly) the parole officer
who issued the parole violation a Tenth Circuit Court of
Appeals' case that is directly on point, which she
Neilsen asserts four claims against Ms. McElderry and a John
and Jane Doe, for (1) unlawful seizure and false imprisonment
in violation of the Fourth and Fourteenth Amendments; (2)
violation of his Fifth Amendment right to be free from
self-incrimination; (3) retaliation in violation of his Fifth
Amendment right to be free from self-incrimination; and (4)
conspiracy to violate his constitutional rights.
McElderry has moved to dismiss all four claims asserted
against her. She argues that Mr. Neilsen's Fourth
Amendment claim fails because she believed that Mr. Neilsen
“did not comply with a valid directive” by
refusing “to sign the conditions of his parole, ”
and that “[f]iling a parole complaint placing him in
custody based upon the belief that he violated a technical
term of his parole was reasonable under the
circumstances.” (Dkt. #15 at 4.) She argues his Fifth
Amendment claim fails because she did not seek “to
compel him to admit anything that would incriminate himself,
” and also because Mr. Neilsen “fails to allege
how the signing of the conditions of his parole would result
in him incriminating himself.” (Id. at 5.) As
for his retaliation claim, Ms. McElderry argues Mr. Neilsen
“was not engaged in a constitutionally protected
activity, ” but “was merely directed to sign the
conditions of his parole.” (Id. at 6.) She
argues that none of his allegations indicate “that the
mere signing of the conditions of his parole would have
require [sic] that he somehow incriminate himself.”
(Id.) Concerning his conspiracy claim, Ms. McElderry
contends that Mr. Neilsen has failed to allege sufficient
facts to prove any of the requisite elements of this claim.
Finally, Ms. McElderry argues she is entitled to qualified
immunity because Mr. Nielsen has failed to sufficiently
allege that she violated his clearly established,
constitutional rights. (Id. at 8.)