# Jones v. Burtlow

> District Court, D. Colorado · October 14, 2021

URL: https://www.frixlaw.com/law-library/cases/10092408

## Case

- **Court:** District Court, D. Colorado
- **Decided:** October 14, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10092408

## How later opinions describe it (automated extraction)

- 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”
- holding that federal courts can take judicial notice of proceedings in other courts, including courts outside of the federal judiciary

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10092408. Public record. Not legal advice.