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Neilsen v. McElderry

United States District Court, D. Colorado

August 7, 2019




         This matter is before the Court on review of the Recommendation by United States Magistrate Judge N. Reid Neureiter, wherein he recommends that this Court grant in part and deny in part Defendant Maggie M. McElderry's Motion to Dismiss (Doc. # 15). (Doc. # 25.) Magistrate Judge Neureiter recommends that the Court deny the Motion to Dismiss as to Plaintiff Thomas Neilsen's Claims One, Two, and Three, and grant the Motion as to Claim Four. For the following reasons, the Court adopts in part the Recommendation and grants Defendant's Motion to Dismiss.

         I. BACKGROUND


         Magistrate Judge Neureiter provided a thorough recitation of the factual and procedural background in this case. The Recommendation is incorporated herein by reference, and the facts will be repeated only to the extent necessary to address Defendant's objections. 28 U.S.C. § 636(b)(1)(B); Fed.R.Civ.P. 72(b).

         In 2016, Plaintiff was in the custody of the Colorado Department of Corrections (“CDOC”) at the Crowley County Correctional Facility (“CCCF”) where he was serving his four years sentence 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.” (Doc. # 25 at 2.) Plaintiff is seeking “post-conviction relief to a charge that was” allegedly “unfounded and based entirely on false reports.” (Doc # 1 at ¶ 6.) At a parole hearing, Plaintiff advised the Parole Board that he was seeking post-conviction relief.[1](Id. at ¶ 16.) On October 17, 2016, the Parole Board granted Plaintiff's mandatory release to parole “under the following conditions: (1) he present an adequate parole plan; (2) he have a suitable parole sponsor; (3) he have adequate housing/accommodations; and (4) he have adequate work opportunities. (Id. at ¶ 17.) When the Parole Board granted parole to Plaintiff, it noted in “capital letters” that “Plaintiff ‘DENIES COMMITTING ANY CRIMES AGAINST CHILDREN.'” (Id. at ¶ 18.)

         Plaintiff was scheduled for release on parole on June 20, 2017. (Doc. # 1 at ¶ 30.) On several occasions prior to Plaintiff's upcoming release, Plaintiff met with CCCF Parole Officer Defendant Maggie McElderry to discuss the conditions of Plaintiff's upcoming release. (Id. at ¶ 19.) Defendant presented Plaintiff with the Parole Board's terms of the parole conditions agreement (“Parole Agreement”). (Doc. # 1 at 4, ¶¶ 21- 23; Doc. # 24-1 at 1, ¶ 24.) The Parole Agreement provided that Plaintiff “shall participate in a sex offender intake, evaluation and successfully complete treatment at the discretion of the Sex Offender Supervision Team.” (Doc. # 24-1 at ¶ 24.)

         Throughout Plaintiff's meetings with Defendant about the Parole Agreement, “Plaintiff explained to the Defendant that sex offender treatment would be incompatible with his right to pursue post-conviction relief, in that as part of treatment he would be required to admit guilt to a crime that he did not commit.” (Doc. # 1 at ¶ 8.) Plaintiff repeatedly advised Defendant that he would not sign the Parole Agreement because he was pursuing post-conviction relief, he would not admit guilt as to any crimes against children, and he was invoking the Fifth Amendment privilege against self-incrimination. (Id. at ¶¶ 8-9, 20, 28.)

         Plaintiff “offered to correct and initial the mistakes in the parole conditions agreement[;]” however, Plaintiff alleged that Defendant indicated that “(1) the Plaintiff could not make any corrections to the agreement, (2) the agreement in its present form was not negotiable and (3) the Plaintiff could not note any mistakes in the agreement on the back of the agreement.” (Doc. # 1 at ¶ 24.) Plaintiff requested Defendant to send a copy of the Parole Agreement to Plaintiff's attorney. (Doc. # 1 at ¶¶ 26, 28.) Defendant rejected the request and explained that Plaintiff's attorney would be provided only with a copy of the Parole Agreement after Plaintiff signed it. (Doc. # 1 at ¶ 26.) During another meeting on June 8, 2017, Plaintiff objected to signing the Parole Agreement on Fifth Amendment grounds to which Defendant “stated that she would not discuss legal issues with the Plaintiff.” (Doc. # 1 at ¶ 28.) Defendant also denied Plaintiff's request to meet with his own community parole officer. (Doc. # 1 at 4, ¶ 31.)

         On June 20, 2017, Defendant did not allow Plaintiff to be released from the correctional facility when Plaintiff declined to sign the Parole Agreement. (Doc. # 1 at ¶ 30.) On that day, Defendant “filed a complaint against [Plaintiff] [] charging him with failure to ‘follow the directives of and cooperate with the Community Parole Officer[, ]'” and Plaintiff was arrested on that charge. (Id. at ¶¶ 32-33.) Plaintiff was detained at Fremont County Detention Center and released after a period of time. (Id. at ¶ 35.) When Plaintiff was released, he signed a different parole agreement that did not contain the requirement to participate in or complete sex offender treatment. (Id. at ¶¶ 32-36.)

         Plaintiff asserted four claims against Defendant McElderry and Defendants “John and Jane Doe” for (1) unlawful seizure and false imprisonment of Plaintiff in violation of the Fourth and Fourteenth Amendments; (2) unlawful violation of Plaintiff's Fifth Amendment right against self-incrimination; (3) retaliation in violation of Plaintiff's Fifth Amendment right to be free from self-incrimination; and (4) conspiracy to violate Plaintiff's constitutional rights. (Doc. # 1 at 6-11.) Defendant moved to dismiss all of Plaintiff's claims because Defendant is entitled to qualified immunity and Plaintiff failed to plausibly state claims for relief under Rule 12(b)(6). (Doc. # 15.)

         B. Magistrate Judge Neureiter's Recommendation

         Magistrate Judge Neureiter recommends that the Court grant Defendant's Motion to Dismiss (Doc. # 15) as to Claim Four, but deny it as to Claims One, Two, and Three. (Doc. # 25.) The Magistrate Judge also rejected Defendant's defense of qualified immunity because Plaintiff sufficiently alleged that Defendant violated Plaintiff's “clearly established” constitutional rights. (Id. at 16-17.)

         First, Magistrate Judge Neureiter determined that Plaintiff “plausibly stated a claim for violating his Fifth Amendment privilege against self-incrimination.” (Id. at 10.) The Magistrate Judge likened Plaintiff's case to the United States Court of Appeals for the Tenth Circuit's United States v. Von Behren-a decision in which the court held that a plaintiff's Fifth Amendment right was violated when the government petitioned to amend the plaintiff's supervised release agreement to condition his release upon his submission to a polygraph examination and answering of self-incriminating questions about sexual crimes unrelated to his conviction for distribution of child pornography. 822 F.3d 1139 (10th Cir. 2016). Relying on that case, Magistrate Judge Neureiter concluded that when Defendant prevented Plaintiff's release because Plaintiff refused to sign the Parole Agreement while invoking his Fifth Amendment privilege against self-incrimination, Defendant's conduct violated the Fifth Amendment. (Id. at 12.)

         Next, Magistrate Judge Neureiter concluded that Plaintiff “plausibly pled his Fourth Amendment claim” because “as a matter of law” he could not rule that Defendant's “asserted belief that [Plaintiff] [] violated a technical term of his parole was reasonable, or that it was reasonable for [Defendant] to arrest him and place him in custody for 29 days beyond his mandatory release date.” (Id. at 13.) The Magistrate Judge observed that Defendant's conduct was arguably unreasonable because Plaintiff “not only explained to her that he had a Fifth Amendment right that would be violated if he was forced to sign the parole agreement, he gave her a highlighted copy of a case to support his assertion of this right.” (Id.)

         Regarding Plaintiff's retaliation claim, because Magistrate Judge Neureiter concluded that Plaintiff plausibly pled a claim for violation of his Fifth Amendment right, the Magistrate Judge reasoned that Plaintiff “engaged in constitutionally protected activity, ” and as such, Plaintiff established a plausible retaliation claim. (Id. at 13-15.)

         With respect to Plaintiff's conspiracy claim, Magistrate Judge Neureiter recommends that the Court dismiss the claim because Plaintiff “has not pled anything other than ‘[c]onclusory allegations without factual support' in relation to his conspiracy claim, and these ‘are inadequate as a matter of law.'” (Id. at 15) (quoting Wilson v. City of Lafayette, No. CIVA 07-cv-01844-EWN-KLM, 2008 WL 419742, at *10 (D. Colo. Sept. 10, 2008)).

         Defendant objected to Magistrate Judge Neureiter's Recommendation as to Claims One, Two, and Three. (Doc. # 28.) Plaintiff responded in opposition to Defendant's Objection. (Doc. # 29.) For the following reasons, the Court respectfully disagrees with Magistrate Judge Neureiter's conclusion that Plaintiff's allegations support plausible claims for relief. Accepting Plaintiff's allegations as true and drawing all reasonable inferences therefrom in favor of Plaintiff, the Complaint is still devoid of facts necessary to plausibly establish that his constitutional rights were violated. Thus, Defendant is entitled to qualified immunity, which bars Plaintiff's remaining claims.



         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires that the district judge “determine de novo any part of the magistrate judge's [recommended] disposition that has been properly objected to.” An objection is properly made if it is both timely and specific. United States v. One Parcel of Real Property Known As 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996). In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3).

         When there are no objections filed to a magistrate judge's recommendation, “the district court is accorded considerable discretion with respect to the treatment of unchallenged magistrate reports. In the absence of timely objection, the district court may review a magistrate [judge's] report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991).


         Plaintiff is proceeding pro se. The Court, therefore, reviews his pleading “liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (a court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         C. RULE 12(B)(6)

         Rule 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be ...

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