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Tillery v. Raemisch

United States District Court, D. Colorado

October 3, 2018

RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, JOHN CHAPDELAINE, Warden of the Sterling Correctional Facility, JAMES FALK, Warden of the Limon Correctional Facility, ROBERT DICK, Manager II of the Sterling Correctional Facility, and LEONARD WOODSON, III, Director of SOTMP, Defendants.



         This case concerns the right of sex offenders incarcerated by the Colorado Department of Corrections (“CDOC”) to access and participate in sex offender treatment programs. Plaintiff Thomas Tillery (“Plaintiff”) contends that CDOC, through its named employees (together “Defendants”), has deprived Plaintiff of treatment and that as a result, Plaintiff is effectively ineligible for parole and will “languish in prison indefinitely.” (ECF No. 74 at 2.)

         This matter is currently before the Court on cross motions for summary judgment (the “Motions”). (ECF Nos. 70; 74.) The central points of the parties' disagreement are whether Plaintiff has a liberty interest; the contours of the liberty interest; whether Plaintiff suffered any deprivation of a liberty interest; whether any deprivation violates substantive due process; and what process (if any) is due.

         As discussed below, Court finds that Plaintiff has a liberty interest in not having his indeterminate sentence become a de facto life sentence because he cannot begin treatment. However, there are unresolved factual questions regarding whether the waiting list is indeed a de facto life sentence, whether the Global Referral List (described below) is a rational waiting list, and whether the Global Referral List unconstitutionally prolongs the detention of an individual.

         The Court thus denies Plaintiff's Amended Motion for Summary Judgment (ECF No. 74) and Defendants' Motion for Summary Judgment (ECF No. 70). The case remains set for a Final Trial Preparation Conference on February 1, 2019 at 2:30 p.m., and a three-day bench trial to begin on February 19, 2019 at 8:30 a.m.

         I. BACKGROUND

         The following factual summary is based on the parties' briefs and documents submitted in support. These facts are generally undisputed except where noted. All citations to docketed materials are to the page number in the CM/ECF header, which sometimes differs from a document's internal pagination.

         Plaintiff is incarcerated at CDOC's Sterling Correctional Facility. (ECF No. 70 ¶ 1.) Plaintiff was convicted of a sex offense under the Colorado Sex Offender Lifetime Supervision Act of 1998 (“SOLSA”), Colorado Revised Statutes §§ 18-1.3-1001 et seq., and sentenced to concurrent, indeterminate sentences of 60 years to life under Colorado Revised Statute § 18-1.3-1004(1)(a). (Id. ¶ 2.) Plaintiff subsequently appealed his sentences and, in 2012, they were reduced to eight years to life and ten years to life. (Id. ¶ 3.) He entered CDOC custody on July 27, 2006, and had a parole eligibility date of June 3, 2017. (Id. ¶ 1.) Given the nature of Plaintiff's sentences and the plain language of SOLSA, sex offender treatment is mandatory for Plaintiff. (ECF No. 74 ¶ 3.)

         A. CDOC's Sex Offender Treatment and Maintenance Program

         SOLSA requires that convicted sex offenders undergo appropriate treatment. To comply with this requirement, CDOC offers the Sex Offender Treatment and Maintenance Program (“SOTMP”). CDOC formerly used a “phase system, ” which required offenders to complete Phase I and Phase II of treatment, regardless of their risk assessment, before progressing to the “maintenance” phase. (ECF No. 70 ¶ 27.) Under that system, approximately nine offenders per month completed treatment. (ECF No. 70-7 at 44-45.)

         At the present time, risk assessment occurs in two phases. Upon entry into CDOC, static factors-including the offender's age, nature of the offense, gender of the victim, and use of violence in the offense-are recorded to assess an offender's risk of recidivating. Inmates are assigned a classification based on their offense (S1-S5) and an “SOTMP Treatment Qualifier.” (ECF No. 74-11 at 2-3; ECF No. 70 ¶¶ 17-19.) An S1 designation indicates that the inmate's history does not suggest any sexual violence treatment needs, and an S5 classification applies to those with a judicial determination of a sex offense. (ECF No. 74-11 at 2; ECF No. 70 ¶¶ 17-18.) The SOTMP Treatment Qualifiers include “R-Ready” for offenders who meet SOTMP participation requirements; “P-Pending” for those who meet requirements but have been previously terminated, removed for cause, dropped out of treatment, or refused SOTMP placement; “D-Does Not Meet Criteria”; “I-Ineligible” for offenders not within four years of their parole eligibility date or otherwise not yet eligible for SOTMP; or “L-Low” for low resource priority offenders, including those with unadjudicated sex abuse allegations. (ECF No. 74-11 at 2-3; ECF No. 70 ¶¶ 18-19.) Plaintiff is currently classified as an S5R. (ECF No. 74 ¶ 8; ECF No. 84 ¶ 8.)

         When an offender begins treatment, CDOC also evaluates dynamic risk factors-such as level of engagement, acceptance of responsibility, and cooperation with treatment, supervision, and rules-primarily using the Sex Offender Treatment Intervention and Progress Scale. (ECF No. 70-5 at 11.) The parties dispute when the dynamic risk factors are evaluated: Defendants contend that therapists “regularly” review the dynamic factors, whereas Plaintiff claims that dynamic risk evaluation happens once an offender begins treatment. (ECF No. 70 ¶ 29; ECF No. 85 ¶ 29; ECF No. 87 ¶ 29.) While Plaintiff cites an inapposite section of SOTMP Program Administrator Leonard Woodson III's deposition testimony, it appears from another section of Mr. Woodson's testimony that the evaluation of dynamic risk factors happens “at the beginning of treatment and . . . every six months thereafter.” (ECF No. 70-5 at 11.)

         The program has been audited and restructured over the years to respond to program review recommendations. In November 2016, the Colorado Office of the State Auditor released an audit of CDOC's behavioral health program. (ECF No. 74-6.) That report raised the concern of “offenders with lifetime supervision sentences remaining in prison indefinitely . . . because they cannot be released until they are treated.” (ECF No. 74 ¶ 16; ECF No. 74-6 at 120-21.) The audit stated that at the current rate of enrollment, it would take over eight years to enroll all offenders currently awaiting treatment, not including any new offenders who may be referred for treatment. (ECF No. 74-6 at 120.) It also cited “a risk that some offenders may have to wait much longer if newly referred offenders are prioritized before those offenders.” (Id.)

         In January 2017, CDOC implemented a “track system, ” which takes into account the level of risk when determining what treatment an offender will receive. (ECF No. 70 ¶ 28.) Under the new, dual track system, approximately seventeen offenders per month complete treatment. (ECF No. 70 ¶ 27.) Track I is a “cognitive behavioral therapeutic group for low risk and treatment needs offenders.” (ECF No. 74-11 at 5.) Track II is for offenders “who have been assessed as moderate-high to high risk for sexual recidivism and have more intensive treatment needs.” (Id.)

         Track I treatment is provided at six facilities, Track II treatment is provided at three facilities, and SOTMP maintenance is offered at one facility and as part of re-entry services. (ECF No. 70 ¶ 30.) Whether treatment is offered at a particular facility is a function of space, staffing, and CDOC's financial resources. (Id. ¶ 34.) Recognizing that “lack of qualified staff is one barrier to providing a fully staffed program, ” CDOC is beginning to contract with “outside, private individuals, ” increasing the availability of SOTMP. (Id. ¶¶ 33, 37.) Currently, no SOTMP is offered at the Sterling Correctional Facility, where Plaintiff is housed. (Id. ¶¶ 1, 30.) However, CDOC has a process for moving an offender to a facility that offers treatment once the offender is accepted into the program. (Id. ¶¶ 39, 41.)

         B. The Global Referral List

         Currently, there are not enough spots for all eligible offenders (those designated “R-Ready”) to participate in treatment. (Id. ¶ 43.) As of June 30, 2017, over 1, 400 sex offenders were awaiting treatment. (Id.) CDOC's stated goal is to provide timely treatment to incarcerated offenders. (ECF No. 84 ¶ 17.) Plaintiff contends that CDOC could provide timely treatment to all inmates without compromising public safety or fundamentally altering CDOC's operations. (ECF No. 74 ¶ 17.) In a deposition, Mr. Woodson stated that he could see a future where all qualified individuals with indeterminate sentences would be able to participate in SOTMP before their parole eligibility date, but not with CDOC's current staffing constraints. (ECF No. 74-7 at 9.)

         CDOC developed the “Global Referral List, ” a wait list which prioritizes offenders for SOTMP participation based on the requirements outlined in Administrative Regulation 700-10(IV)(E)(1)(a)-(d) (“AR 700-19”). Offenders within four years of their parole eligibility date are ranked using a formula “based upon, but not limited to” (a) parole eligibility date, (b) risk for sexual recidivism, (c) prior SOTMP treatment opportunities, and (d) institutional behavior.[1] (ECF No. 74-11 at 4.) “CDOC uses a formula in order to determine which offenders from the Global Referral List are able to participate in the next treatment group.” (ECF No. 70 ¶ 23.) CDOC uses a program called MPS, an “antiquated” DOS-based system developed in the 1980s, to manage the Global Referral List. (ECF No. 74-1 at 13.)

         Plaintiff argues that “[p]rocedural issues permeate the sex offender classification and priority system.” (ECF No. 74 ¶ 30.) Specifically, Plaintiff claims that the algorithm used to determine priority is unknown to Defendants, that CDOC does not know the exact factors that the algorithm takes into account or the relative weight of the factors, and that “it is impossible to determine how each of the factors input into the system will impact priority placement, if at all.” (ECF No. 74 ¶ 7; ECF No. 85 ¶ 15.) Plaintiff contends that the MPS does not provide a predictable, objective basis for assigning priority because the formula is unknown and not subject to meaningful quality control measures. (ECF No. 85 ¶ 23.) Thus, Plaintiff argues, assignments to treatment groups are not necessarily based on the priorities outlined in AR 700-19. (ECF No. 85 ¶ 15.)

         In response, Defendants observe that Plaintiffs criticism goes to the relative weight of the factors, not the inputs themselves. (Id.) Defendants deny that the algorithm is unknown, and argue that Plaintiff relies on a misstatement of deposition testimony in support of his claim. (ECF No. 84 ¶ 7.) Defendants contend that Plaintiff ignores the deponent's statement that information technology personnel would have a better sense of how the system prioritizes individuals based on the static risk input factors. (ECF No. 84 ¶ 7.) Defendants do not, however, explain how the Global Referral System prioritizes inmates for treatment based on the various risk factors input into the MPS system.

         Mr. Woodson testified as follows as the Rule 30(b)(6) deponent for CDOC:

The MPS system, it's my understanding, was something that was developed in the '80s, or thereabouts, so a pretty antiquated system. It's a DOS-based system, so pretty difficult to work in.
Q. And that's -- let me rephrase that. Is that part of the reason it's difficult to parse out the relative impact of the factors we discussed earlier regarding prioritization?
A. Yes, that's one of the reasons why it's difficult to really identify the weight of each of those factors.
Q. Is it possible to predict how the system will prioritize someone with any degree of certainty based on the four factors we discussed earlier within the global referral system?
A. That's probably a better question for OIT, for information technology, possibly Mr. Olivares. I wouldn't be able to make that statement.

(ECF No. 74-1 at 13) (emphasis added). Based on Mr. Woodson's testimony, it appears that the old DOS-based system makes it difficult for CDOC staff to identify the weight of each factor. (Id.) However, information technology personnel may be able to better determine how each factor influences placement on the Global Referral List. (Id.) Neither party has included information from such personnel regarding the weight of the factors or how the MPS system ...

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