Doe v. Heil

• Decision Date: 21 March 2011
• Docket Number: Civil Action No. 08–cv–02342–WYD–CBS.
• Citation: 781 F.Supp.2d 1134
• Parties: John DOE, Plaintiff,v.Margaret HEIL, in her official capacity as Acting Manager of the Colorado Department of Corrections Sex Offender Treatment and Monitoring Program; and Aristedes Zavaros [sic], in his official capacity as Executive Director of the Colorado Department of Corrections, Defendants.
• Court: U.S. District Court — District of Colorado

781 F.Supp.2d 1134

John DOE, Plaintiff,

v.Margaret HEIL, in her official capacity as Acting Manager of the Colorado Department of Corrections Sex Offender Treatment and Monitoring Program; and Aristedes Zavaros [sic], in his official capacity as Executive Director of the Colorado Department of Corrections, Defendants.

Civil Action No. 08–cv–02342–WYD–CBS.

United States District Court, D. Colorado.

March 21, 2011.Order Denying Motion to Amend

June 23, 2011.

John B. Roesler, John B. Roesler, Attorney at Law, Denver, CO, for Plaintiff.James Xavier Quinn, Colorado Attorney General's Office–Employment Law, Denver, CO, for Defendants.

ORDER ON MOTION TO DISMISS

WILEY Y. DANIEL, Chief Judge.I. INTRODUCTION

THIS MATTER is before the Court on Defendant's Combined Motion to Dismiss and Memorandum Brief in Support of Motion to Dismiss. Defendant moves to dismiss this case pursuant to Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motion to dismiss is granted.

II. BACKGROUND

This is a civil rights case filed pursuant to 42 U.S.C. § 1983 by a prison inmate. Plaintiff John Doe (hereinafter “Doe” or “Plaintiff”) is a sex offender incarcerated in the Colorado Department of Corrections (“CDOC”). He is currently serving a sentence after pleading guilty to a sex offense. Defendant Heil is an employee of the CDOC and is the Program Administrator of the CDOC Sex Offender Treatment Program.

Doe asserts three claims in his Amended Complaint. In Claim One, Doe asserts a facial challenge to the CDOC Administrative Regulation requiring him to admit the commission of his sex offense and to take a polygraph examination to participate in sex offender treatment. (Am. Compl. at ¶¶ 29–30.) In Claim Two, he alleges that his Fifth Amendment right against self-incrimination was violated because he was required to take a polygraph examination and potentially make incriminating statements and/or admit to committing a sex offense in order to participate in sex offender treatment. Finally, in Claim Three Plaintiff asserts a Substantive Due Process claim alleging that the CDOC policy or regulation “is so egregious, so outrageous that it may fairly be said to shock the contemporary conscience of a federal judge.” ( Id. at ¶ 49). Doe seeks a declaration that the CDOC policy is null and void, prospective injunctive relief reinstating him into sex offender treatment, an order that he not be penalized for asserting his Fifth Amendment rights, as well as costs and attorney fees. ( Id. at 12).

I initially dismissed all claims as barred by the statute of limitations by Order of September 28, 2009, 2009 WL 3158165. Upon reconsideration, by Order of March 26, 2010, 2010 WL 1258011, I affirmed dismissal of Plaintiff's claims as they pertain to termination from the Sex Offender Treatment Program. I reinstated “Plaintiff's claims as they relate to policies and/or alleged constitutional deprivations associated with the requirements of re-entry into the sex offender treatment program, i.e., re-taking a polygraph and providing a sexual history.” (March 26, 2010 Order, ECF No. 30 at 3–4). In that Order I noted that Plaintiff's claims relating to reinstatement may also be time barred. However, I reinstated the claims because I found that the allegations of the complaint are unclear as to the date(s) Plaintiff refused to retake a polygraph and to provide his sexual history. ( Id. at 3.)

Defendants move to dismiss all of Plaintiff's claims. First, Defendants argue that Plaintiff's claims are time-barred because they were not filed within two years of the date he knew or had reason to know of the injury which is the basis of this action. Second, Defendants argue that Plaintiff's claims fail as a matter of law. They assert in that regard that the Fifth Amendment claim fails under applicable Tenth Circuit and other authority. They also argue that Plaintiff fails to state a liberty interest and that the prison's procedure is reasonably related to a legitimate penological interest. Finally, Defendants argue that the CDOC policy, and its application, cannot be said to “shock the conscience of federal judges.” (Defendants' Combined Mot. to Dismiss and Memorandum Br. in Supp. of Mot. to Dismiss [hereinafter “Mot. to Dismiss”], ECF No. 33 at 14.) For the reasons stated below, I grant the Motion to Dismiss on the merits.¹

III. ANALYSISA. Standard of Review

The Federal Rules of Civil Procedure provide 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 granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations and quotation marks omitted). “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991).

“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Plausibility, in the context of a motion to dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 1950. Under this standard I first address Plaintiff's second claim for relief under the Fifth Amendment and then turn to the other claims.

B. Whether Dismissal is Appropriate

1. The Fifth Amendment Claim (Claim II)

Plaintiff claims that his Fifth Amendment right against self-incrimination is violated by CDOC administrative regulations requiring convicted sex offenders to provide a full sexual history and pass an accompanying polygraph examination in order to participate in and/or be readmitted to the sex offender treatment program required for parole eligibility. (Am. Compl., ECF No. 3 at ¶ 45.) Plaintiff has taken and failed the polygraph examination on multiple occasions and was subsequently removed from the program. ( Id. at ¶ 19.) The Fifth Amendment claim is based on Plaintiff's contention “that there is a risk that he would reveal past crimes other than ... [his] conviction ..., and that his admissions could then be used to prosecute him.” ( Id. at ¶ 40.) The CDOC neither disputes this possibility nor offers Plaintiff any assurance of immunity for incriminating statements.

Analyzing the constitutionality of a prison policy involves a two-part test: (1) whether the “plaintiff alleged facts showing the violation of a constitutional right,” and (2) whether the prison meets “the relatively limited burden of identifying the legitimate penological interests that justif [ied] the impinging conduct.” Boles v. Neet, 486 F.3d 1177, 1182 (10th Cir.2007) (citing Salahuddin v. Goord, 467 F.3d 263, 274–75 (2d Cir.2006) (modification in original)). Once the plaintiff has made the requisite showing of a violation of a constitutional right, the burden shifts to the defendant to identify the legitimate penological interests of the challenged policy. Id.

a. Violation of a Constitutional Right

The Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. To establish a Fifth Amendment claim, an individual “must prove two things: (1) that the testimony desired by the government carried the risk of incarceration, and (2) that the penalty he suffered amounted to compulsion.” United States v. Antelope, 395 F.3d 1128, 1134 (9th Cir.2005) (internal citations omitted). Concerning the risk of incarceration, Plaintiff is entitled to an “infer[ence] that his sexual autobiography would, in fact, reveal past sex crimes....” Id. at 1134–35. This being the case, and in the absence of an assurance of immunity from Defendants, I find that Plaintiff has adequately demonstrated the risk of incarceration.

The compulsion element of a Fifth Amendment claim is satisfied when the government threatens sufficiently adverse consequences to the choice to remain silent as to compel an individual to speak in a potentially self-incriminating manner. Lefkowitz v. Cunningham, 431 U.S. 801, 805, 97 S.Ct. 2132, 53 L.Ed.2d 1 (1977). However, not all adverse consequences constitute “compulsion”.² In this case, Defendants argue, “The requirement that applicants disclose their past histories of sexual misconduct as a condition of participation in a sex offender treatment does not constitute compulsion even if there was reduced likelihood of parole for refusal to participate.” (Mot. to Dismiss at 8.) In support of this proposition, Defendants cite several cases in which the court determined that requiring inmates to share their sexual biographies as part of a treatment program did not violate their Fifth Amendment rights. See e.g., Wirsching v. Colorado, 360 F.3d 1191, 1203–04 (10th Cir.2004) (holding that the denial of earned good time credits to an inmate for refusing to admit that he committed a sex offence did not violate his Fifth Amendment right); Searcy v. Simmons, 299 F.3d 1220, 1227–28 (10th Cir.2002) (holding that the denial of eligibility for good time credits to inmate who refused to divulge his sexual history as required by a sex offender treatment program did not amount to unconstitutional “compulsion”).

Wirsching and Searcy relied on the Supreme Court's analysis in McKune v. Lile, 536 U.S. 24, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002). In that case, an inmate who refused to complete a sexual history questionnaire and undergo a polygraph examination as part of a sex...