United States District Court, D. Colorado
ORDER ADOPTING IN PART THE RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
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
A.
FACTUAL 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.
II.
STANDARDS OF REVIEW
A.
REVIEW OF A RECOMMENDATION
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).
B.
PRO SE PLAINTIFF
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 ...