Allen v. Clements

• Decision Date: 13 March 2013
• Docket Number: Civil Action No. 11–cv–03396–PAB–MEH.
• Citation: 930 F.Supp.2d 1252
• Parties: Paul ALLEN, Scott Arends, Wayne Bethurum, Jeremy Loyd, and Gary Skaggs, On behalf of themselves and all others similarly situated, Plaintiffs, v. Tom CLEMENTS, Executive Director, Colorado Department of Corrections, Burl McCullar, Director of the Sex Offender Treatment and Management Program, Colorado Department of Corrections, and Jane/John Doe(s), known to defendants but presently unknown to plaintiffs, Defendants.
• Court: U.S. District Court — District of Colorado

930 F.Supp.2d 1252

Paul ALLEN, Scott Arends, Wayne Bethurum, Jeremy Loyd, and Gary Skaggs, On behalf of themselves and all others similarly situated, Plaintiffs,

v.Tom CLEMENTS, Executive Director, Colorado Department of Corrections, Burl McCullar, Director of the Sex Offender Treatment and Management Program, Colorado Department of Corrections, and Jane/John Doe(s), known to defendants but presently unknown to plaintiffs, Defendants.

Civil Action No. 11–cv–03396–PAB–MEH.

United States District Court, D. Colorado.

March 13, 2013.

Alison L. Ruttenberg, Attorney at Law, Boulder, CO, Ingrid J. DeFranco, Law Offices of Ingrid J. DeFranco, Brighton, CO, John Kenneth Pineau, Law Offices of John Kenneth Pineau, P.C., Boulder, CO, for Plaintiff.

Kathryn Anne Teresa Starnella, Nicole S. Gellar, Colorado Attorney General's Office, Denver, CO, for Defendant.

ORDER

PHILIP A. BRIMMER, District Judge.

This matter is before the Court on Defendants Clements and McCullar's Motion to Dismiss Class Action Complaint for Declaratory and Injunctive Relief [Docket No. 14]. The Court's jurisdiction is based on 28 U.S.C. § 1331. Plaintiffs are inmates in the Colorado Department of Corrections (“CDOC”) who have been sentenced to indeterminate terms of imprisonment under the Colorado Sex Offender Lifetime Supervision Act (“SOLSA”), Colo.Rev.Stat. § 18–1.3–1001 et seq. Docket No. 1 at 2, ¶ 1. Plaintiffs claim that, under SOLSA, they can only be paroled if they complete sex offender treatment and, therefore, unless they have access to such treatment, they will serve life sentences contrary to legislative intent. Docket No. 1 at 3.

I. PROCEDURAL HISTORY

Plaintiffs filed this case, pursuant to 42 U.S.C. § 1983, on December 29, 2011, on behalf of themselves and all other persons who are, or will be, held in custody by CDOC pursuant to SOLSA. Docket No. 1 at 6, ¶ 18. Plaintiffs allege that defendants are arbitrarily denying them sex offender treatment in violation of the Eighth and Fourteenth Amendments. Docket No. 1 at 13–15, ¶ ¶ 43–52. They also allege that defendants have interfered with their access to counsel and to the courts, in violation of the First, Sixth, and Fourteenth Amendments. Docket No. 1 at 15–16, ¶¶ 53–58. Plaintiffs request that the Court (1) declare that defendants' conduct is unconstitutional; (2) enjoin defendants from arbitrarily and capriciously denying plaintiffs treatment or access to counsel; and (3) award plaintiffs reasonable attorney's fees and costs. Docket No. 1 at 17, ¶¶ 3–5. Defendants have filed a motion to dismiss plaintiffs' complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. Docket No. 14.

II. STANDARD OF REVIEW

The Court's function on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted 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.¹Fed.R.Civ.P. 12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir.2003) (citations omitted). In doing so, the Court “must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff.” Alvarado v. KOB–TV, LLC, 493 F.3d 1210, 1215 (10th Cir.2007) (quotation marks and citation omitted). At the same time, however, a court need not accept conclusory allegations. Moffett v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1232 (10th Cir.2002).

Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.’ ” Erickson v. Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The “plausibility” standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.2008). However, “where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks and alteration marks omitted). Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still must contain either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at 1286 (quotation marks and citation omitted).

“[A] putative class representative who alleges no individual injury may not seek relief on behalf of himself or any other member of the class.” U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 413, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (quoting O'Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974) (internal quotation marks omitted)). Plaintiffs “must allege and show that they personally have been injured, not that injury has been suffered by other, unidentified members of the class to which they belong and which they purport to represent.” Warth v. Seldin, 422 U.S. 490, 502, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

“[I]n general, a motion to dismiss should be converted to a summary judgment motion if a party submits, and the district court considers, materials outside the pleadings.” Prager v. LaFaver, 180 F.3d 1185, 1188 (10th Cir.1999); Fed.R.Civ.P. 12(d). However, a court may properly consider facts subject to judicial notice, state court pleadings, and matters of public record without converting a motion to dismiss into a motion for summary judgment. Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th Cir.2008). State administrative regulations are subject to judicial notice. Roemer v. Bd. of Pub. Works of Md., 426 U.S. 736, 743 n. 4, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976) (taking judicial notice of Maryland Board of Public Works regulations); Ray v. Aztec Well Serv. Co., 748 F.2d 888, 889 (10th Cir.1984) (“This court can take judicial notice of [state] agency rules and regulations.”); see also Burkhart v. Timme, No. 11–cv–00341–MSK–MEH, 2013 WL 317544, at *3 n. 2 (D.Colo. Jan. 25, 2013) (“the Court takes judicial notice of the fact that CDOC's Administrative Regulations are public records and a full copy of the regulations discussed in this Order [is] available online”).

III. FACTUAL ALLEGATIONS IN COMPLAINT

The following facts are drawn from the complaint unless otherwise indicated and, for purposes of defendants' motion to dismiss, are assumed to be true.

Defendant Tom Clements is the Executive Director of CDOC. Docket No. 1 at 5, ¶ 14. Defendant Burl McCullar is the Director of the Sex Offender Treatment and Management Program (“SOTMP”). Docket No. 1 at 5, ¶ 15. Defendants Clements and McCullar are responsible for policymakingwith respect to SOTMP's provision of treatment. Docket No. 1 at 5, ¶¶ 14–15. The Doe defendants are individuals employed by CDOC who are responsible for conceiving and implementing CDOC's policies with respect to providing treatment under SOLSA. Docket No. 1 at 5, ¶ 16. Defendant CDOC is a prison system operating pursuant to Colo.Rev.Stat. § 17–1–101 et seq. Docket No. 1 at 5, ¶ 17.

SOLSA provides that “[e]ach sex offender sentenced pursuant to this section shall be required as a part of the sentence to undergo treatment to the extent appropriate.” Colo.Rev.Stat. § 18–1.3–1004(3). Treatment is administered by the SOTMP. CDOC Administrative Regulation 700–19, Sex Offender Treatment and Monitoring Program [Docket No. 15–1].² Individuals sentenced under SOLSA are not eligible for parole unless they complete offense-specific treatment. Colo.Rev.Stat. § 18–1.3–1006(1)(a) (“In determining whether to release the sex offender on parole, the parole board shall determine whether the offender has successfully progressed in treatment and would not pose an undue threat to the community”). Resources permitting, SOTMP provides two phases of treatment, Level I and Level II. Docket No. 15–1 at 5, § IV.F. In Level I, inmates focus on taking responsibility for their abusive behavior, identifying problem areas, and demonstrating their willingness to commit to the requirements of the treatment program. Id. at 5, § IV.F.1. In Level II, inmates prepare for “living a responsible lifestyle in the community” by changing distorted thought patterns, identifying relapse cycles and means for interrupting those cycles, and practicing problem-solving strategies. Id. at 5–6, § IV.F.2.

On November 8, 2001, plaintiff Paul Allen was sentenced under SOLSA to an indeterminate term of two-years-to-life for sexually assaulting a child. Docket No. 1 at 8, ¶ 29. His parole eligibility date was July 20, 2002. Id. He was not permitted to begin treatment until 2011 and, as of the filing of the complaint, he had not advanced to Level II treatment. Id.

On March 15, 2002, plaintiff Scott Arends was sentenced under SOLSA to an indeterminate term of two-years-to-life for sexually assaulting a child. Docket No. 1 at 8, ¶ 30. His parole eligibility date was April 24, 2003. Id. He was permitted to begin treatment in April 2002, but was terminated in November 2002 on a false allegation and without a hearing. Id. He was permitted to begin treatment again in June 2003 and advanced to the second level of treatment in July 2003, at which point he was terminated for having too many Christian magazines. Id. In 2004, he was transferred to a different facility, where he was victimized for his sexual orientation and the nature of his conviction. Docket No. 1 at 8–9, ¶ 30. In 2005, he was returned to his initial facility and permitted to restart the second level of treatment. Id. He was terminated from treatment once again and permitted to restart in 2006. Id. He was then...