Beebe v. State

          ORDER GRANTING MOTION TO DISMISS AS MOOT

          CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Defendants' Motion to Dismiss as Moot (Doc. # 106). Having reviewed the Motion, pertinent record, and relevant law, the Court finds that Plaintiff's claim is moot, which deprives this Court of subject matter jurisdiction.

         I. BACKGROUND

         Plaintiff was convicted and sentenced to probation for a Colorado sex offense on April 13, 2002. Probation was revoked on November 30, 2007, and Plaintiff was resentenced to a minimum mandatory two years to life indeterminate sentence to the Colorado Department of Corrections (“CDOC”), which was modified on May 13, 2009, to reflect the opportunity for discretionary rather than mandatory parole. Plaintiff is currently an inmate at the Centennial Correctional Facility within the CDOC. (Doc. # 35 at ¶¶ 5, 10-11.)

         At all times throughout his incarceration, Plaintiff alleges that he has had “mental impairments of Axis I: 300.02 Generalized Anxiety Disorder, with Panic Disorder; Axis I: 2000.4 Persistent Depressive Disorder, which includes Major Depressive Disorder, and Axis II: 301.4 Obsessive/Compulsive Personality Disorder (OCD).” (Id. at ¶ 8.) Plaintiff further asserts that such mental impairments “substantially limit [his] concentration, thinking, communicating, and brain function.” (Id. at ¶ 9.) Moreover, Plaintiff contends that these mental impairments cause him to experience “excessive anxiety and worry, restlessness, and difficulty concentrating, accompanied by overstimulation of his nervous system, accelerated heart rate, shortness or irregularity of breath, muscle tension and dizziness, all of which are exacerbated by the prospect of and actual taking of a polygraph.” (Id. at ¶ 22.)

         Plaintiff has been and currently is admitted to and participating in the Sex Offender Treatment and Monitoring Program (“SOTMP”). (Id. at ¶¶ 4, 12.) To qualify for permission to receive parole, Plaintiff must earn a “Successful Progress” status by meeting seven treatment criteria, the second of which is central to this case. (Id. at ¶¶ 15-17.) The second criterion requires “verification of sexual history ‘through either the . . . polygraph . . . or other clinical indicators” (“Second Criterion”). (Id. at ¶ 17 (quoting Colo. Sex Offender Mgmt. Bd., Standards and Guidelines for the Assessment, Evaluation, Treatment and Behavioral Monitoring of Adult Sex Offenders 304, LS 4.210(A) (April 2018)) (emphasis in original).) The Sex Offender Management Board (“SOMB”) Standards provide that “other clinical indicators” may include “scores on dynamic risk assessments” and “behavioral observations.” (Id. at ¶ 19.)

         Plaintiff alleges that he routinely fails the polygraph component of the Second Criterion as a result of his alleged disabilities. (Id. at ¶¶ 18, 22-23.) As such, Plaintiff requested an Americans with Disabilities Act (“ADA”) accommodation from Defendants, seeking a waiver of the polygraph test and the ability to use “other clinical indicators” so that he can meet the Second Criterion. (Id. at ¶¶ 24-38); (Doc. # 62 at 2). Defendants denied Plaintiff's request. (Doc. # 35 at ¶¶ 25, 32-34.)

         On June 1, 2018, Plaintiff filed suit against Defendants (Doc. # 1), and on September 24, 2018, Plaintiff filed his Amended Complaint (Doc. # 35), wherein he asserted a single claim for Violation of Title II of the ADA. Specifically, Plaintiff sought “declaratory judgment and relief against Defendants in the form of an order enjoining Defendants to allow Plaintiff's requested reasonable accommodation of polygraph waiver in sex offender treatment and supervision.” (Id. at 14.) Although Plaintiff's Amended Complaint did not so specify, at the Final Trial Preparation Conference, Plaintiff represented that he also seeks a polygraph waiver during his time on parole.^[1]

         Both parties moved for summary judgment (Doc. ## 67, 71), which the Court denied. (Doc. # 105.) At the Final Trial Preparation Conference on November 21, 2019, Defendants represented to the Court that, recently, Plaintiff had been more “open” about his history with his treatment providers, and this openness permitted his treatment providers to use “other clinical indicators” to verify his sexual history. (Doc. # 108 at 13.) As a result, Plaintiff progressed in treatment and Defendants determined that he met the listed criteria, including the Second Criterion, and recommended him for parole. (Id.) In fact, he is scheduled to appear before the Colorado State Parole Board (“Parole Board”) on December 9, 2019-the same day that trial in the instant action is to commence. (Id.)

         Given Plaintiff's successful progression in sex offender treatment and that Defendants are no longer requiring him to submit to a polygraph examination, Defendants filed their Motion to Dismiss as Moot (Doc. # 106) and therein argue that those recent developments have rendered Plaintiff's claim as moot. Additionally, Defendants aver that the Court has no authority to decide whether Plaintiff is entitled to a polygraph waiver while on parole because whether he will obtain parole is speculative and, even if he obtains parole, the Parole Board and private actors, not Defendants, set conditions, rules, and regulations that govern Plaintiff's parole. (Doc. # 106 at 9-11; Doc. # 106-1 at 8, ¶ 20, 20.) The instant Motion implicates foundational principles of Article III-standing and mootness. As such, the Court considers whether recent developments in the case divest it of subject matter jurisdiction to resolve Plaintiff's action for declaratory and injunctive relief.

         II. LEGAL STANDARDS

         A. STANDING

         The United States Constitution limits the jurisdiction of the federal courts to actual cases or controversies. U.S. Const. art. III, § 2, cl. 1. At the start of litigation, a plaintiff must show standing under Article III by demonstrating: “(1) an injury in fact; (2) a causal connection between the injury and the challenged action; and (3) a likelihood that a favorable decision will redress the injury.” Ind v. Colo. Dep't of Corr., 801 F.3d 1209, 1214 (10th Cir. 2015) (emphasis in original) (quoting Jordan v. Sosa, 654 F.3d 1012, 1019 (10th Cir. 2011) (citing Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 180-81 (2000)).

         The Supreme Court has defined an “injury in fact” as “an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). Although a plaintiff may present evidence of a past injury to establish standing for retrospective relief, he must demonstrate a continuing injury to establish standing for ...