Toevs v. Quinn

Decision Date31 January 2017
Docket NumberCivil Action No. 15-cv-02838-RBJ-NYW
PartiesJANOS TOEVS, Plaintiff, v. JAMES QUINN, First Assistant Attorney General, CYNTHIA COFFMAN, Attorney General for the State of Colorado, KEITH NORDELL, Legal Counsel for the Colorado Department of Corrections, ADRIENNE JACOBSON, Legal Counsel for the Colorado Department of Corrections, THERESA REYNOLDS, Legal Assistant for the Colorado Department of Corrections, RICK RAEMISCH, Executive Director of the Colorado Department of Corrections, TRAVIS TRANI, Warden of the Colorado State Penitentiary, SEAN FOSTER, Associate Warden of the Colorado State Penitentiary, CAROL SOARES, Associate Warden of the Colorado State Penitentiary, FRANK ORTIZ, Litigation Coordinator of the Colorado State Penitentiary, CHRIS BARR, Intelligence Lieutenant at the Colorado State Penitentiary, DANIEL DENT, Intelligence Sergeant at the Colorado State Penitentiary, RAEANNE WILL, Disciplinary Officer at the Colorado State Penitentiary, and DALE BURKE, Hearing Officer at the Colorado State Penitentiary, Defendants.
CourtU.S. District Court — District of Colorado

JANOS TOEVS, Plaintiff,
v.
JAMES QUINN, First Assistant Attorney General,
CYNTHIA COFFMAN, Attorney General for the State of Colorado,
KEITH NORDELL, Legal Counsel for the Colorado Department of Corrections,
ADRIENNE JACOBSON, Legal Counsel for the Colorado Department of Corrections,
THERESA REYNOLDS, Legal Assistant for the Colorado Department of Corrections,
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections,
TRAVIS TRANI, Warden of the Colorado State Penitentiary,
SEAN FOSTER, Associate Warden of the Colorado State Penitentiary,
CAROL SOARES, Associate Warden of the Colorado State Penitentiary,
FRANK ORTIZ, Litigation Coordinator of the Colorado State Penitentiary,
CHRIS BARR, Intelligence Lieutenant at the Colorado State Penitentiary,
DANIEL DENT, Intelligence Sergeant at the Colorado State Penitentiary,
RAEANNE WILL, Disciplinary Officer at the Colorado State Penitentiary,
and DALE BURKE, Hearing Officer at the Colorado State Penitentiary, Defendants.

Civil Action No. 15-cv-02838-RBJ-NYW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

January 31, 2017


RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Magistrate Judge Nina Y. Wang

This civil action comes before the court on Defendants' "Motion to Dismiss or Motion for Summary Judgment." [#28, filed July 8, 2016]. The matter was referred to this Magistrate Judge pursuant to the Order Referring Case and memorandum dated September 1, 2016. [#34]. This court has reviewed the Motion, the entire case file, the applicable law, and the comments offered during the oral argument held January 12, 2017. Being fully apprised in the premises,

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this court respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN PART.

BACKGROUND

Given the wide-ranging nature of the Amended Complaint and the myriad arguments presented in the briefing on the Motion to Dismiss, this court's discussion of Plaintiff's factual allegations is extensive.

I. Procedural History

Plaintiff Janos Toevs ("Plaintiff" or "Mr. Toevs") is a prisoner in the custody of the Colorado Department of Corrections ("CDOC"). On December 30, 2015, Mr. Toevs, through his attorney Elisabeth Owen, filed a thirty-page Complaint naming various individuals affiliated with the Colorado Attorney General's office and the CDOC, and asserting eight claims for relief arising from the confiscation and review of certain of his legal materials and the subsequent charge and conviction for unlawful possession of other inmates' legal materials. See Those defendants filed a Motion to Dismiss on April 22, 2016, [#16], and in response Plaintiff filed an Amended Complaint on May 16, 2016, which remains the operative pleading. See [#19].

The Amended Complaint names the following individuals as Defendants: James Quinn, Cynthia Coffman, Keith Nordell, Adrienne Jacobson, Theresa Reynolds, Rick Raemisch, Travis Trani, Sean Foster, Carol Soares, Frank Ortiz, Chris Barr, Daniel Dent, Raenne Will, and Dale Burke. Defendant Quinn is a First Assistant Attorney General for the State of Colorado and Defendant Coffman is the Attorney General for the State of Colorado (collectively, the "AG Defendants"). Defendants Nordell and Jacobson are identified as former and current Directors of

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the CDOC Office of Legal Services and Defendant Reynolds is the assistant to the Director of the CDOC Office of Legal Services. [#19 at 2]. Defendant Raemisch is the Executive Director of the CDOC. Defendant Trani is the Warden of the Colorado State Penitentiary ("CSP"), where Plaintiff was incarcerated at the time relevant to the allegations in the Amended Complaint, and Defendants Foster and Soares were the Associate Wardens of CSP during the time in question.1 Defendant Ortiz was a Litigation Coordinator at CSP during the time in question; Defendant Barr was an Intelligence Lieutenant at CSP during the time in question; Defendant Dent was an Intelligence Sergeant at CSP during the time in question; Defendant Will is the Disciplinary Officer at CSP; and Defendant Burke was the Hearing Officer at CSP during the time in question. [#19 at 2-3]. Defendants Coffman and Jacobson are sued in their official capacity only. [#19 at ¶¶ 3, 5]. Defendants Raemisch, Dent, Will, and Burke are sued in their official and individual capacities. [Id. at ¶¶ 7, 13, 14, 15]. Defendants Quinn, Nordell, Reynolds, Trani, Foster, Soares, Ortiz, and Barr are sued in their individual capacity only. [Id. at ¶¶ 2, 4, 6, 8, 9, 10, 11, 12].

Plaintiff asserts nine claims in all and seven claims against Defendants as a group: (1) Retaliation for Exercise of Protected Rights to Access the Court in Violation of the First Amendment; (2) Conspiracy to Obstruct Justice in Violation of 42 U.S.C. § 1985; (3) Deprivation of Property Without Due Process in Violation of the Fourteenth Amendment; (4) Denial of Right to Counsel in Violation of the Sixth Amendment; (5) Breach of Attorney-Client Privilege in Violation of First Amendment; (6) Denial of Right to Privacy in Violation of the

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Fourth Amendment; and (7) Denial of Right to Access the Courts in Violation of the First Amendment. [#19 at 23-33]. He brings all but the second claim pursuant to 42 U.S.C. § 1983. The Eighth Claim for Cruel and Unusual Punishment in Violation of the Eighth Amendment is also brought pursuant to section 1983 and is asserted against Defendants Raemisch, Trani, Foster, Barr, and Dent. The Ninth Claim for Malicious Prosecution in Violation of Colorado Common Law is asserted against Defendants Quinn, Dent, Foster, Trani, and Raemisch. [Id. at 33-34]. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331, and supplemental jurisdiction pursuant to 28 U.S.C. § 1367(a).

II. Factual Allegations

At the core of Mr. Toevs's pleading lie allegations that CDOC employees and employees of Colorado's Attorney General are improperly confiscating and reading prisoners' protected legal materials, and that the lack of policy or directive prohibiting this conduct, or that a culture that condones this conduct, results in chilling prisoners' efforts to engage in constitutionally protected behavior, particularly in seeking access to the courts. The following factual allegations are taken as true for the purposes of this Motion.

A. The Milyard Appeal and CLCP v. Herrera

In September 2012, Mr. Toevs filed a lawsuit pursuant to 42 U.S.C. § 1983 alleging in relevant part that intelligence staff's ("Intel") mismanagement resulted in violence at the Sterling Correctional Facility ("SCF"). [#19 at ¶ 19]. The complaint filed in that matter, Toevs v. Milyard, et al., Civil Action No. 12-cv-02532-REB-MEH, asserted that Intel arbitrarily implemented security threat group ("STG") classification as retaliation against prisoners "who spoke out against the policies and practices of SCF," and "as a coercive force to silence prisoner

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speech." [Id. at ¶¶ 20-22]. In November 2013, the Milyard court granted summary judgment for defendants, for which Plaintiff sought review in the Tenth Circuit Court of Appeals, Case No. 13-1476. [Id. at ¶ 23].

Ms. Owen, Plaintiff's attorney here, was simultaneously pursuing a lawsuit in El Paso County District Court, captioned Colorado Prison Law Project v. Herrera, et al., Case No. 13CV300363 ("CPLP v. Herrera"), in large part to obtain intelligence files containing STG classifications of certain of her clients. [#19 at ¶¶ 24, 25]. Plaintiff was aware of the lawsuit and this specific objective, but was not a party to that action. [Id. at ¶ 25]. The CPLP v. Herrera complaint alleged that Intel, including Defendants Barr and Dent, refused to provide intelligence files to Ms. Owen in violation of the Colorado Criminal Justice Records Act. [Id. at ¶ 25]. All the filings in CPLP v. Herrera were accessible to the public and no protective order was on file. [Id. at ¶ 26]. During the pendency of CPLP v. Herrera, Plaintiff discussed with Ms. Owen the prospect of her representing him in several matters, including a bid for clemency. Plaintiff ultimately retained Ms. Owen to represent him in this endeavor. [Id. at ¶ 27].

In June 2013, Ms. Owen mailed to Plaintiff a copy of the CPLP v. Herrera complaint, which he received through the CSP legal mail program as governed by CDOC Administrative Regulation ("AR") 300-38. AR 300-38 states:

Restricted Inspection Mail: All incoming and outgoing offender mail to or from a specified class of persons and organizations, which DOC employees, contract workers, and volunteers are prohibited from reading to protect confidentiality, but are permitted to inspect for contraband in the offender's presence.

...

The DOC shall ensure and facilitate offender access to counsel and assist offenders in making confidential contact with attorneys and their authorized representatives; such contact includes, but is not limited to uncensored

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correspondence. [4-4275] To be considered a confidential contact from an attorney, their authorized representative, or legal aid organization, the incoming mailing envelope must include the following:

a. Attorney's first and last name;
b. Attorney's registration, bar, or license number....;
c. Attorney's complete business address;
d. Mailing envelope must be clearly marked "PRIVILEGED" or "CONFIDENTIAL."
#19 at 5-6]. Plaintiff placed the CPLP v. Herrera complaint in his legal box, which, pursuant to CDOC policy, may only be "searched in the presence of the offender," and, even then, "attorney-client privileged documents shall not be read, but only searched for contraband." [Id. at ¶ 30]. Plaintiff used his legal box to store Ms. Owen's other correspondence, the majority of which pertained to his clemency bid. [Id. at ¶ 31]. All correspondence from Ms. Owen to Plaintiff was clearly marked "Privileged and Confidential" and met all other requirements for protecting confidentiality prescribed by the CDOC ARs. [Id. at ¶ 32].

B. Search of Mr. Toevs's Legal Box

In December 2013, while Plaintiff's Milyard appeal was pending,...

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