Jones v. Burtlow

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 20-cv-03693-CMA-MEH

ADAM JONES,

Plaintiff,

v.

STEPHENS, in his individual capacity,

Defendant.

_____________________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

_____________________________________________________________________________

Michael E. Hegarty, United States Magistrate Judge.

Plaintiff Adam Jones asserts one claim against Defendant Brian Stephens pursuant to 42

U.S.C. § 1983 related to the confiscation of prison mail. Defendant filed the present Motion to

Dismiss (“Motion”), asserting that he is entitled to qualified immunity. District Judge Christine

M. Arguello referred the Motion to this Court for a recommendation. ECF 34. The Court finds

that oral argument would not materially assist in adjudicating the Motion. For the reasons

described herein, the Court respectfully recommends that the Motion be granted.

BACKGROUND

I. Factual Background

The following are the relevant, factual allegations made by Plaintiff in the operative

pleading, which are taken as true for analysis under Fed. R. Civ. P. 12(b)(6) pursuant to Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009).

Plaintiff was a prisoner at the Fremont Correctional Facility (“FCF”) in Canon City,

Colorado. Am. Compl. at 2. On or about July 9, 2020, Plaintiff received mail, including one

greeting card with five pictures of children inside. Id. Defendant opened Plaintiff’s mail when it

arrived at FCF. Id. at 9. He declared the mail contraband and withheld it from Plaintiff. Id.

Plaintiff alleges this was done in contravention of Colorado Department of Corrections (“CDOC”)

administrative regulations that require the mail to be sent to a reading committee for review. Id.

Due to this, Plaintiff asserts that Defendant violated his First Amendment rights. Id.

II. Procedural Background

Plaintiff initially filed this suit against several other defendants with four additional claims.

However, on April 20, 2021, following initial review, Magistrate Judge Gordon P. Gallagher

recommended dismissal of all other defendants and all but one of Plaintiff’s claims. ECF 23. On

May 11, 2021, Senior District Judge Lewis T. Babcock accepted and adopted the recommendation.

ECF 24. Thus, Plaintiff’s sole remaining claim is for the alleged violation of the First Amendment

against Defendant in his individual capacity. Id.

LEGAL STANDARDS

I. Fed. R. Civ. P. 12(b)(6)

The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the

plaintiff’s complaint. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th

Cir. 2008). “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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In tis

context, plausibility 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. Twombly requires

a two-prong analysis. First, a court must identify “the allegations in the complaint that are not

entitled to the assumption of truth,” that is, those allegations which are legal conclusions, bare

assertions, or merely conclusory. Id. at 679. Second, the Court must consider the factual

allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the

allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 680.

Plausibility refers “to the scope of the allegations in a complaint: if they are so general that

they encompass a wide swath of conduct, much of it innocent, then the plaintiffs have not nudged

their claims across the line from conceivable to plausible.” S.E.C. v. Shields, 744 F.3d 633, 640

(10th Cir. 2014) (quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191 (10th Cir. 2012)). “The

nature and specificity of the allegations required to state a plausible claim will vary based on

context.” Safe Streets All. v. Hickenlooper, 859 F.3d 865, 878 (10th Cir. 2017) (quoting Kan. Penn

Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011)). Thus, while the Rule 12(b)(6)

standard does not require that a plaintiff establish a prima facie case in a complaint, the elements

of each alleged cause of action may help to determine whether the plaintiff has set forth a plausible

claim. Khalik, 671 F.3d at 1191.

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. The complaint must provide “more

than labels and conclusions” or merely “a formulaic recitation of the elements of a cause of action,”

so that “courts ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”

Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Determining

whether a complaint states a plausible claim for relief will . . . be a context-specific task that

requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556

U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer more than the mere

possibility of misconduct,” the complaint has made an allegation, “but it has not shown that the

pleader is entitled to relief.” Id. (quotation marks and citation omitted).

II. Treatment of a Pro Se Plaintiff’s Complaint

A pro se plaintiff’s “pleadings are to be construed liberally and held to a less stringent

standard than formal pleadings drafted by lawyers.” Garrett v. Selby Connor Maddux & Janer,

425 F.3d 836, 840 (10th Cir. 2005) (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991)). “Th[e] court, however, will not supply additional factual allegations to round out a

plaintiff’s complaint or construct a legal theory on plaintiff's behalf.” Smith v. United States, 561

F.3d 1090, 1096 (10th Cir. 2009) (quoting Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th

Cir. 1997)). The Tenth Circuit interpreted this rule to mean, if a court “can reasonably read the

pleadings to state a valid claim on which the plaintiff could prevail, [it] should do so despite the

plaintiff’s failure to cite proper legal authority, his confusion of various legal theories, his poor

syntax and sentence construction, or his unfamiliarity with pleading requirements.” Diversey v.

Schmidly, 738 F.3d 1196, 1199 (10th Cir. 2013) (quoting Hall, 935 F.2d at 1110). However, this

interpretation is qualified in that it is not “the proper function of the district court to assume the

role of advocate for the pro se litigant.” Garrett, 425 F.3d at 840 (quoting Hall, 935 F.2d at 1110).

ANALYSIS

As mentioned above, Plaintiff’s sole claim remaining in this matter is the First Amendment

claim against Defendant for withholding his mail. Defendant asserts the defense of qualified

immunity, arguing both that Plaintiff has not stated a constitutional violation nor pointed to a right

that is clearly established. The Court agrees with Defendant on both elements.

I. Qualified Immunity

The doctrine of qualified immunity protects from litigation a public official whose possible

violation of a plaintiff’s civil rights was not clearly a violation at the time of the official’s actions.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important

interests - the need to hold public officials accountable when they exercise power irresponsibly

and the need to shield officials from harassment, distraction, and liability when they perform their

duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Because qualified immunity

is an immunity from suit, rather than a mere defense to liability, it is effectively lost if a case is

erroneously permitted to go to trial. Id. at 231; Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir.

2006) (“The privilege is an immunity from suit rather than a mere defense to liability.”). The

“driving force behind creation of the qualified immunity doctrine was a desire to ensure that

insubstantial claims against government officials will be resolved prior to discovery.” Pearson,

555 U.S. at 231–32 (quoting Anderson v. Creighton, 483 U.S. 635, 640 n.2 (1987)). In other

words, “[q]ualified immunity is designed to protect ‘all but the plainly incompetent or those who

knowingly violate the law.’” Soza v. Demsich, – F.4th –, 2021 WL 4203054, at *2 (10th Cir. Sept.

16, 2021) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

When a defendant asserts qualified immunity, the plaintiff has a two-fold burden to

overcome the asserted immunity: (1) “rebut the [defendant’s] no-constitutional-rights arguments”

and (2) “demonstrate that any constitutional violation was grounded in then-extant clearly

established law.” Cox v. Glanz, 800 F.3d 1231, 1245 (10th Cir. 2015) (citing Riggins v. Goodman,

572 F.3d 1101, 1107 (10th Cir. 2009)); see also Felders v. Malcom, 755 F.3d 870, 877–78 (10th

Cir. 2014) (“[T]he ‘record must clearly demonstrate the plaintiff has satisfied his heavy two-part

burden; otherwise, the defendants are entitled to qualified immunity.’” (quoting Medina v. Cram,

252 F.3d 1124, 1128 (10th Cir. 2001))). An official’s conduct violates clearly established law

when, at the time of the challenged conduct, “[t]he contours of [a] right [are] sufficiently clear”

that every “reasonable official would have understood that what he is doing violates that right.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). To satisfy the clearly established prong of the test,

the Tenth Circuit requires that “there must be a Supreme Court or Tenth Circuit decision on point,

or the clearly established weight of authority from other courts must have found the law to be as

the plaintiff maintains.” Clark v. Wilson, 625 F.3d 686, 690 (10th Cir. 2010).

Traditionally, there has been a two-step process for resolving qualified immunity

questions: “First, a court must decide whether the facts that a plaintiff has alleged . . . make out a

violation of a constitutional right. . . . Second, if the plaintiff has satisfied this first step, the court

must decide whether the right at issue was clearly established at the time of the defendant’s alleged

misconduct.” Pearson, 555 U.S. at 232 (quoting Saucier v. Katz, 533 U.S. 194 (2001) (internal

citations and quotation marks removed)). However, the Supreme Court has afforded courts the

discretion to decide “which of the two prongs of the qualified immunity analysis should be

addressed first in light of the circumstances in the particular case at hand.” Id. at 236; see also

Christensen v. Park City Mun. Corp., 554 F.3d 1271, 1277 (10th Cir. 2009). Here, the Court

begins with whether Plaintiff has pointed to clearly established law.

A. Clearly Established

Plaintiff points to five cases in his response as demonstrating clearly established law. Two

of them are not Tenth Circuit or Supreme Court cases: Krug v. Lutz, 329 F.3d 692 (9th Cir. 2003)

and People v. Holmes, 959 P.2d 406 (Colo. 1998). As such, they cannot, alone, provide the basis

for clearly established law. Clark, 625 F.3d at 690. Plaintiff’s three remaining cases are all

Supreme Court decisions: Procunier v. Martinez, 416 U.S. 396 (1974), overruled by Thornburgh

v. Abbott, 490 U.S. 401 (1989); Turner v. Safley, 482 U.S. 78 (1987); and Thornburgh v. Abbott,

490 U.S. 401 (1989). Through these cases, the Supreme Court ruled that prison regulations

concerning the sending of mail to inmates are subject to a reasonableness standard, such that

“regulations are ‘valid if [they are] reasonably related to legitimate penological interests.’”

Thornburgh, 490 U.S. at 413 (quoting Turner, 482 U.S. at 89).

For a right to be clearly established, “[t]he contours of the right must be sufficiently clear

that a reasonable official would understand that what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640 (1987). There is no requirement that “a case [be] directly on point,

but existing precedent must have placed the statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (citing Anderson v. Creighton, 483 U.S. 635, 640

(1987)). This means that clearly established law cannot be defined “at a high level of generality.”

Id. at 742. Instead, “the clearly established law must be ‘particularized’ to the facts of the case.”

White v. Pauly, 137 S. Ct. 548, 552 (2017).

Plaintiff has not met his burden of pointing to a clearly established right. He contends that

the reasonableness standard in Turner, while generally applicable in these types of cases, is “moot”

here because “[t]here is absolutely no CDOC prison regulation that prevents sex offenders from

receiving or possessing pictures of children.” Resp. at 7.1 In other words, Turner applies to

regulations, and there is no specific regulation concerning or permitting Defendant’s conduct. If

1 The reference to Plaintiff as a sex offender comes from the briefing and not the Amended

Complaint. In fact, Defendant relies heavily on Plaintiff’s conviction for a sex offense, which is

not alleged in the Amended Complaint. Defendant requests that the Court take judicial notice of

Plaintiff’s criminal appeal case, People v. Jones, 18CA929 (Colo. App. Jan. 14, 2021), attached to

the Motion as an exhibit. ECF 32-1. “[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). “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.” Allen v. Clements,

930 F. Supp. 2d 1252, 1259 (D. Colo. 2013) (citing Pace v. Swerdlow, 519 F.3d 1067, 1072 (10th

Cir. 2008)). Thus, the Court can and will take judicial notice of People v. Jones without converting

the Motion into a motion for summary judgment. See St. Louis Baptist Temple, Inc. v. Fed. Deposit

Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979) (holding that federal courts can take judicial

notice of proceedings in other courts, including courts outside of the federal judiciary).

Plaintiff’s interpretation is correct, then the Supreme Court cases he cites are inapplicable because

they concern regulations and not “rogue” acts by individuals. Put differently, Plaintiff has not

cited a case with particularized facts that would put Defendant on notice of a clearly established

right. Even if Plaintiff’s interpretation is wrong, namely that Defendant’s actions can constitute a

regulation or policy without a formal regulation from the prison, Plaintiff’s cited cases are at too

high a level of generality. None of them concern the confiscation of mail containing photographs

of children from a convicted sex offender. Accordingly, Plaintiff cannot point to a clearly

established right, and Defendant is entitled to qualified immunity.

B. First Amendment Violation

Alternatively, even if Plaintiff met his burden on the clearly established law, Defendant is

still entitled to qualified immunity for lack of a plausibly pled constitutional violation. Defendant

argues that the confiscation of Plaintiff’s greeting card and photos is not a constitutional violation

because the restriction is reasonably related to FCF’s penological interests. Mot. at 8. Specifically,

Defendant contends that Plaintiff is convicted of possession of child pornography and preventing

him from receiving photographs of children is a rational restriction on Plaintiff’s mail. Id.

As mentioned earlier, the Supreme Court has held that “restrictive prison regulations

[including restrictions on First Amendment rights] are permissible if they are reasonably related

to legitimate penological interests and are not exaggerated response to those concerns.” Beard v.

Banks, 548 U.S. 521, 528 (2006) (citing Turner, 482 U.S. at 78). Therefore, to survive a motion

to dismiss for failure to state a claim, Plaintiff “must include sufficient facts to indicate the

plausibility that the actions of which he complains were not reasonably related to legitimate

penological interests.” Gee v. Pacheco, 627 F.3d 1178, 1187–88 (10th Cir. 2010).

In Ahlers v. Rabinowitz, the Second Circuit affirmed the dismissal of a prisoner’s complaint

alleging the illegal withholding of his mail. 684 F.3d 53, 64–65 (2d 2012). There, the prison

confiscated mail that “contained images of children in bathing suits, which staff deemed clinically

inappropriate.” Id. at 65. The Second Circuit held that, “[b]ecause of the state’s interest in treating

[the plaintiff’s] sexual deviance, [facility] staff had justification for an embargo on these images.”

Id. Similarly, the District Court for the Northern District of New York found that “[r]estrictions

on incoming mail containing pictures of minors in a group home where many residents have

committed sexual offenses against children is a policy that is rationally related to legitimate

government interests.” Yeldon v. Hogan, No. 9:08-cv-769 (NAM/RFT), 2010 WL 983819, at *9

(N.D.N.Y. Mar. 15, 2010).

Like those courts, the Court agrees that the prevention of mail including photos of children

from reaching inmates convicted of sexual crimes involving children serves legitimate penological

needs. Plaintiff’s allegations in his Amended Complaint do not plausibly draw an inference to the

contrary. Gee, 627 F.3d at 1188 (noting that the plaintiff must “plead facts from which a plausible

inference can be drawn that the action was not reasonably related to a legitimate penological

interest”). Nor does Plaintiff’s assertion that Defendant’s alleged failure to follow FCF’s

procedure to forward mail to a reading committee save his claim. See Ernst v. Creek Cnty. Pub.

Facilities Authority, 697 F. App’x 931, 934 (10th Cir. 2017) (“The Supreme Court has held that

simply failing to follow jail policies is not a constitutional violation in and of itself.”). Whether

Defendant complied with the prison regulation regarding incoming mail, the fact is that

withholding photos of children2 from a convicted possessor of child pornography is a rational

2 Defendant notes that the photos sent to Plaintiff are not mere photos of children but can

“constitute sexually explicit material under the federal standards prohibiting ‘lascivious’ display

of children’s genitals.” Mot. at 7 n.1 (citing U.S. v. Knox, 32 F.3d 733, 744–51 (3d Cir. 1994)).

restriction related to a legitimate penological interest. As such, Plaintiff has not plausibly pleaded

his claim, and Defendant is entitled to qualified immunity.

II. Leave to Amend

Generally, in a case involving a pro se litigant, the Tenth Circuit has held that if “it is at all

possible that the party against whom the dismissal is directed can correct the defect in the pleading

or state a claim for relief, the court should dismiss with leave to amend.” Reynoldson v. Shillinger,

907 F.2d 124, 126 (10th Cir. 1990). “Particularly where deficiencies in a complaint are attributable

to oversights likely the result of an untutored pro se litigant’s ignorance of special pleading

requirements, dismissal of the complaint without prejudice is preferable.” Id. However,

“[c]omplaints drafted by pro se litigants . . . are not insulated from the rule that dismissal with

prejudice is proper for failure to state a claim when ‘it is obvious that the plaintiff cannot prevail

on the facts he has alleged and it would be futile to give him the opportunity to amend.’” Fleming,

573 F. App’x at 769 (quoting Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999)).

In this case, Plaintiff has already amended his Complaint once. Moreover, the defect in Plaintiff’s

Amended Complaint does not stem from an ignorance of special pleading requirements. Plaintiff’s

fundamental complaint against Defendant is that he confiscated a greeting card containing five

photos of children. As mentioned in this Recommendation, that restriction is based on a legitimate

penological interest in preventing convicted child sex offenders from possessing photographic

material of children. Moreover, Plaintiff failed to demonstrate the existence of a clearly established

right. Hence, if the Court permitted the filing of a second amended complaint, that pleading would

be subject to dismissal and thus futile. See Oxendine v. Kaplan, 241 F.3d 1272, 1275 (10th Cir.

This additional information is not in the Amended Complaint, nor is it a fact of which the Court

can take judicial notice. Therefore, this information plays no role in the Court’s Recommendation.

2001) (“We have stated that ‘[d]ismissal of a pro se complaint for failure to state a claim is proper

only where . . . it would be futile to give him an opportunity to amend.’” (quoting Perkins v. Kans.

Dep’t of Corrections, 165 F.3d 803, 806 (10th Cir. 1999))). Accordingly, Plaintiff's claim against

Defendant should be dismissed with prejudice.

CONCLUSION

For the reasons described, the Court respectfully recommends granting Defendant’s

Motion [filed July 9, 2021; ECF 32] and dismissing Plaintiffs sole claim with prejudice.*

Respectfully submitted this 14th day of October, 2021, at Denver, Colorado.

BY THE COURT:

Michael E. Hegarty

United States Magistrate Judge

> Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any

written objections in order to obtain reconsideration by the District Judge to whom this case is

assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those findings

or recommendations to which the objections are being made. The District Court need not consider

frivolous, conclusive or general objections. A party’s failure to file such written objections to

proposed findings and recommendations contained in this report may bar the party from a de novo

determination by the District Judge of the proposed findings and recommendations. United States

v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file

written objections to the proposed findings and recommendations within fourteen (14) days after

being served with a copy may bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted or adopted by the District Court. Duffield v.

Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quoting Moore v. United States, 950 F.2d 656,

659 (10th Cir. 1991)).

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