Searching over 5,500,000 cases.

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.

Neilsen v. McElderry

United States District Court, D. Colorado

March 8, 2019

MAGGIE M. MCELDERRY, and JOHN AND JANE DOE, whose true names is/are unknown, Defendants.



         This 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.

         For the 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.


         Unless 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.

         Prior 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.[1] He currently is seeking post-conviction relief “to prove his innocence” in relation to the sexual assault conviction.

         At his 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.”

         Mr. 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.

         Ms. 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.

         After 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.

         According 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.

         Mr. 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.)[2] 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.

         On June 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.

         The 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 ignored.


         Mr. 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.

         Ms. 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.)


         A. Pro ...

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.