Petition for Writ of Certiorari — Justin A. Jefferson, Petitioner v. Moses Andre Stancil, Director, Colorado Department of Corrections, et al.

Jefferson v. Stancil, 2026 U.S. App. LEXIS 18106

Copy Citation

United States Court of Appeals for the Tenth Circuit

June 23, 2026, Filed

No. 25-1153

Opinion

ORDER AND JUDGMENT

Justin A. Jefferson appeals from the dismissal of his pro se action challenging several policies of

the Colorado Department of Corrections (CDOC) Sex Offender Treatment and Monitoring

Program (SOTMP). The district court dismissed the action for failure to state a claim under Federal

Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291 and affirm.

I

Jefferson is serving an indeterminate sentence of ten years to life under Colorado's Sex Offender

Lifetime Supervision Act, Colo. Rev. Stat. §§ 18-1.3-1001 to - 1012. A magistrate judge distilled

the allegations in the third amended complaint into three claims averring that CDOC officials

violated Jefferson’s: 1) Fourteenth Amendment rights by conditioning his eligibility for parole on

his participation in SOTMP and by denying him enrollment in 2020, while he was appealing his

convictions; 2) Fifth Amendment right against compelled self-incrimination by requiring that he

admit guilt, submit to a polygraph examination, and disclose his complete sexual history; and

3) First Amendment rights by prohibiting him from possessing sexually explicit material.

The magistrate judge recommended that the action be dismissed. The magistrate judge first

observed that prison policies impinging on constitutional rights, including SOTMP policies

Appendix A - Court of Appeals Opinion

12 of 75

conditioning Jefferson’s enrollment on his willingness and ability to comply with SOTMP rules,

are permissible if they are reasonably related to legitimate penological interests. See R. vol. I at

235-36 (citing Turner y. Safley, 482 U.S. 78, 89, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987)).

But the magistrate judge determined Jefferson lacked standing to assert his Fourteenth

Amendment claim because he sought injunctive relief for the alleged denial of enrollment in 2020,

yet he filed this lawsuit in 2023, after he had already enrolled in SOTMP, admitted guilt, and

concluded his appeal. The magistrate judge noted that, although he sought monetary damages

against defendants Folz and Bailey, his only relevant allegations indicated they compelled him to

submit a reenrollment form in 2023, see R. vol. I at 147, and he was not denied treatment at that

time.

As for the remaining claims, the magistrate judge determined Jefferson failed to allege facts

showing SOTMP’s policies requiring him to admit guilt, submit to a polygraph examination, and

disclose his sexual history were not rationally related to a legitimate penological interest. The

magistrate judge reached the same conclusion regarding Jefferson’s First Amendment claim: he

failed to allege facts showing the restrictions on his possession of sexually explicit materials were

not reasonably related to legitimate penological interests.

Over Jefferson’s objections, the district court adopted the magistrate judge's report and

recommendation and dismissed the action. Jefferson appealed.

II

We review de novo the district court's dismissal under Rule 12(b)(6). Brown v. City of Tulsa, 124

F.4th 1251,1263 (10th Cir. 2025). "To survive a Rule 12(b)(6) motion, the complaint must contain

Appendix A - Court of Appeals Opinion

13 of 75

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face." Id. (internal quotation marks omitted). The plausibility standard requires that "the complaint

... plead factual content that allows the court to draw the reasonable inference that the defendant

is liable for the misconduct alleged." Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1275

(10th Cir. 2023) (internal quotation marks omitted). There must be factual allegations to plausibly

infer that the SOTMP policies are not reasonably related to any legitimate penological

interest. See Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012). Although we

afford Jefferson’s pro se materials a liberal construction, we "cannot take on the responsibility of

serving as [his] attorney in constructing arguments and searching the record." Garrett v. Selby

Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005).

A. Fourteenth Amendment Denial of SOTMP Enrollment

Jefferson contends the district court incorrectly dismissed his Fourteenth Amendment claim

under Turner. But the district court dismissed the Fourteenth Amendment claim for lack of

standing. Because Jefferson does not challenge the district court's standing analysis, we affirm the

dismissal of this claim. See Nixon v. City & Cnty. of Deny., 784 F.3d 1364, 1369 (10th Cir.

2015) (affirming dismissal of claim where appellant failed to challenge the basis for the district

court's dismissal).

B. Fifth Amendment Self-Incrimination

Jefferson also contends the district court erred in dismissing his Fifth Amendment claim

challenging SOTMP policies conditioning his treatment on him admitting guilt, submitting to a

Appendix A - Court of Appeals Opinion

14 of 75

polygraph examination, and disclosing his complete sexual history. He says these policies violate

his privilege against compelled self-incrimination.

The Fifth Amendment provides that "[n]o person shall... be compelled in any criminal case to be

a witness against himself." U.S. Const, amend. V. But "[w]hat might be viewed as an unreasonable

infringement of a fundamental constitutional right were it to occur outside of prison may be valid

in prison as long as the infringement is reasonably related to legitimate penological objectives,

which include rehabilitation, deterrence and security." Mosier v. Maynard. 937 F.2d 1521, 1525

(10th Cir. 1991). Rehabilitation of sex offenders is a legitimate penological interest. McKune v.

Lile, 536 U.S. 24, 36, 122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002). Indeed, "[t]he state's interest in

rehabilitating sex offenders is a valid one, and the requirement for admission of responsibility is

considered a legitimate part of the rehabilitative process." Searcy v. Simmons, 299 F.3d 1220,1228

(10th Cir. 2002); see also McKune, 536 U.S, at 33 ("When convicted sex offenders reenter society,

they are much more likely than any other type of offender to be rearrested for a new rape or sexual

assault. States thus have a vital interest in rehabilitating convicted sex offenders." (citation

omitted)).

Here, the challenged policies all advance the state's legitimate penological interest in

rehabilitating Jefferson as a convicted sex offender, and Jefferson did not plead any facts

suggesting otherwise. He alleged the SOTMP policies requiring him to admit guilt, submit to a

polygraph examination, and disclose his complete sexual history as a condition of treatment

constitute compulsion because he "faces a penalty significantly more serious than that"

inMcKune—viz., denial of treatment and the loss of parole eligibility. R. vol. I at 149-

50. In McKune, the Court considered a similar Fifth Amendment claim that an inmate was

Appendix A - Court of Appeals Opinion

15 of 75

compelled to incriminate himself under threat of lost privileges and better housing if he refused to

admit responsibility for his crimes, disclose his complete sexual history, and submit to a polygraph

examination to verify the accuracy and completeness of his responses. 536 U.S, at 30-31. Under

those circumstances, a plurality of the Court upheld the rehabilitative scheme, explaining that

"[acceptance of responsibility ... demonstrates that an offender is ready and willing to admit his

crime and to enter the correctional system in a frame of mind that affords hope for success in

rehabilitation over a shorter period of time than might otherwise be necessary." Id. at 3637 (internal quotation marks omitted).

McKune recognized that requiring sex offenders to admit guilt, disclose their sexual histories, and

submit to a polygraph examination advance the state's interest in rehabilitation. Id. at

48. Although Jefferson denies the efficacy of treatment, "[t]herapists and correctional officers

widely agree that clinical rehabilitative programs can enable sex offenders to manage their

impulses and in this way reduce recidivism." Id. at 33. That Jefferson could elect to voluntarily

forego his eligibility for discretionary parole by choosing to reject SOTMP’s rules does not

diminish the state's interest in his rehabilitation, nor does it reflect compulsion. See Searcy, 299

F.3d at 1226 (recognizing state's interest in rehabilitation notwithstanding inmate's lost

opportunity to earn discretionary good-time credits if he refused to admit guilt); see also Nowak v.

Suthers, 2014 CO 14, 320 P.3d 340, 348 (Colo. 2014) ("The grant of parole [in Colorado] is a

privilege, not a right."). Any impact on Jefferson’s parole eligibility is "simply not the result of his

refusal to incriminate himself, but [rather is] a consequence of his inability to

complete rehabilitation." Searcy, 299 F.3d at 1227.

Appendix A - Court of Appeals Opinion

16 of 75

Jefferson also contends that requiring him to disclose his complete sexual history could result in

his prosecution for additional crimes, demonstrating his risk of self-incrimination. But the state's

policy of requiring sex offenders to disclose their sexual histories, even with the potential for

incrimination, "is one central to its mission of rehabilitating sex offenders," Searcy, 299 F.3d at

1227; see also McKune, 536 U.S, at 34 (affirming the validity of the Kansas rehabilitative scheme,

even though "Kansas does not offer legal immunity from prosecution based on any statements

made in the course of [treatment]"). Thus, the district court correctly dismissed this claim

because Jefferson failed to plead any facts plausibly alleging that SOTMP policies are not

reasonably related to the state's legitimate penological interest in rehabilitating sex offenders.

C. First Amendment Access to Sexually Explicit Materials

Finally, Jefferson

disputes

the

dismissal

of

his First

Amendment claim,

which

challenged SOTMP’s prohibition on his access to sexually explicit materials. The district court

declined to consider Jefferson’s objection to the magistrate judge's decision, ruling it was not

sufficiently specific to preserve review under our firm waiver rule. See United States v.

107 F.4th 1152, 1168 (10th Cir. 2024) (explaining that "failure to timely object to a magistrate's

recommendations waives appellate review of both factual and legal questions," and "only an

objection that is sufficiently specific to focus the district court's attention on the factual and legal

issues that are truly in dispute is sufficient" (brackets and internal quotation marks

omitted)). Jefferson merely stated that he "preserve[d]" his claim "to be addressed by the ruling

authority of the Supreme Court at such time." R. vol. I at 252.

Appendix A - Court of Appeals Opinion

17 of 75

On appeal, Jefferson offers various arguments ostensibly supporting the merits of his claim, but

he does not challenge the district court's application of the firm waiver rule. As a result, we decline

to consider the district court's dismissal. See Nixon, 784 F.3d at 1369.

Ill

The district court's judgment is affirmed. Jefferson's motion for clarification, Dkt. No. 36, which

seeks to certify to the Supreme Court a question of Turner's continuing validity, is denied.

Entered for the Court

Bobby R. Baldock

Circuit Judge

Appendix A - Court of Appeals Opinion

18 of 75

Jefferson v. Stancil, 2025 U.S. Dist. LEXIS 51764

Copy Citation

United States District Court for the District of Colorado

March 20, 2025, Decided; March 20, 2025, Filed

Civil Action No. 23-CV-01773-PAB-NRN

Opinion

ORDER

This matter comes before the Court on the Report and Recommendation on CDOC Defendants'

Motion to Dismiss Third Amended Complaint [Docket No. 65]. The recommendation addresses

the defendants' Motion to Dismiss Third Amended Complaint [Docket No. 46]. The Court has

jurisdiction pursuant to 28 U.S.C. § 1331.

I. BACKGROUND

The facts are set forth in the assigned magistrate judge's recommendation, Docket No. 65 at 2-5,

and the Court adopts them for the purpose of ruling on the objections. Plaintiff Justin Jefferson

alleges five claims against the defendants, all of whom are employees of the Colorado Department

of Corrections, the Colorado State Parole Board, or the Sex Offender Management Board of the

Colorado. See generally Docket No. 23. Mr. Jefferson’s complaint challenges the constitutionality

of various aspects of Colorado's Sex Offender Treatment and Monitoring Program (“SOTMP”). Id.

Defendants moved to dismiss Mr. Jefferson’s complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). Docket No. 46. On October 22, 2024, the magistrate judge issued a report and

recommendation and recommended that the Court grant the defendants' motion. Docket No. 65 at

Appendix B - Dist. Court Opinion

19 of 75

1. Mr. Jefferson timely objected to the recommendation, Docket No. 67, and defendants filed a

response to the objection. Docket No. 68. Defendants J.R. Hall and Chris Lobanov-Rostovsky

timely objected to the recommendation, Docket No. 66, and Mr. Jefferson did not file a response.

II. LEGAL STANDARD

A. Review of a Magistrate Judge's Recommendation

The Court must "determine de novo any part of the magistrate judge's disposition that has been

properly objected to." Fed. R. Civ. P. 72(b)(3). An objection is "proper" if it is both timely and

specific. United States v. One Parcel ofReal Prop. Known as 2121 E. 30th St., 73 F.3d 1057,1059

(10th Cir. 1996) ("One Parcel"). A specific objection "enables the district judge to focus attention

on those issues — factual and legal — that are at the heart of the parties' dispute." Id.

In the absence of an objection, the district court may review a magistrate judge's recommendation

under any standard it deems appropriate. See Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir.

1991); see also Thomas v. Arn, 474 U.S. 140, 150, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985) ("It

does not appear that Congress intended to require district court review of a magistrate's factual or

legal conclusions, under a de novo or any other standard, when neither party objects to those

findings."). The Court therefore reviews the non-objected to portions of a recommendation to

confirm there is "no clear error on the face of the record." Fed. R. Civ. P. 72(b), Advisory

Committee Notes. This standard of review is something less than a "clearly erroneous" or "contrary

to law" standard of review, Fed. R. Civ. P. 72(a), which in turn is less than de novo review. Fed.

R. Civ. P. 72(b). Because Mr. Johnson is proceeding pro se, the Court will construe his objections

Appendix B - Dist. Court Opinion

20 of 75

and pleadings liberally without serving as his advocate. See Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991).

B. Motion to Dismiss under Rule 12(b)(6)

To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a

complaint must allege enough factual matter that, taken as true, makes the plaintiffs "claim to

relief . . . plausible on its face." Khalik v. United Air Lines, 671 F.3d 1188, 1190 (10th Cir.

2012) (citing BellAtl. Corp, v. Twombly, 550 U.S. 544, 570, 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." RE/MAX, LLC v. Quicken Loans Inc., 295 F.

Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir.

2008)). 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 Twombly, 550 U.S, at

555) (alterations omitted). A court, however, does not need to accept conclusory allegations. See,

e.g., Hackford v. Babbitt, 14 F.3d 1457, 1465 (10th Cir. 1994) ("we are not bound by conclusory

allegations, unwarranted inferences, or legal conclusions.").

"[W]here 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." Ashcrofty. Iqbal, 556 U.S. 662,679,129 S. Ct. 1937,173 L. Ed. 2d 868 (2009) (quotations

and alterations omitted); see also Khalik, 671 F.3d at 1190 ("A plaintiff must nudge [his] claims

across the line from conceivable to plausible in order to survive a motion to dismiss."

(quoting Twombly, 550 U.S, at 570)). If a complaint's allegations are "so general that they

Appendix B - Dist. Court Opinion

21 of 75

encompass a wide swath of conduct, much of it innocent," then plaintiff has not stated a plausible

claim. Khalik, 671 F.3d at 1191 (quotations omitted). Thus, even though modem 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 (alterations

omitted).

III. ANALYSIS

A. Plaintiffs Objections

1. Objection One

Mr. Jefferson’s first objection takes issue with the magistrate judge's analysis of his due process

claims. Docket No. 67 at 1-2. Mr. Jefferson argues that the recommendation focuses on whether

Mr. Jefferson was denied access to SOTMP treatment because of his ongoing appeal, when instead

it should focus on 1) whether he was denied access to treatment because of his claim of innocence

from his conviction and 2) whether continuous denials of access to treatment violate his

rights. Id. Mr. Jefferson further argues that "the question here falls not on whether it is

constitutional to have conditions, but whether the conditions are constitutional to deny the Plaintiff

his protected liberty interest and violate his Rights, which they are not." Id. at 2.

First, the Court agrees with the magistrate judge's analysis that the conditions for entry into

the SOTMP program are constitutional. See Docket No. 65 at 9-12, 14-16 (discussing substantive

due process issues; discussing Fifth Amendment issues).

Second, the Court agrees with the magistrate judge's finding, id. at 13-14, that Mr. Jefferson does

not have standing to bring his due process claims. "To establish Article III standing, a plaintiff

Appendix B - Dist. Court Opinion

22 of 75

must show (1) an injury in fact, (2) a sufficient causal connection between the injury and the

conduct complained of, and (3) a likelihood that the injury will be redressed by a favorable

decision." Brown v. Buhman, 822 F.3d 1151, 1164 (10th Cir. 2016) (internal quotations and

citation omitted). The third component of standing — redressability — is not met here.

Mr. Jefferson is not currently being denied access to SOTMP; as the defendants explained at the

motion hearing, Mr. Jefferson is currently on the waiting list for open spots in the SOTMP

program. Docket No. 65 at 12-13 (recounting statements made at the motion hearing). The only

possible denial of treatment in this case is the denial that occurred in 2020 due to Mr. Jefferson's

ongoing appeal. Docket No. 23 at 4. But a Court can only remedy past violations of the law

via monetary relief, not injunctive relief. See Hale v. Ashcroft, 683 F. Supp. 2d 1189, 1197 (D.

Colo. 2009) (citing Nova Health Sys, v. Gandy, 416 F.3d 1149, 1155 n. 6 (10th Cir. 2005)). Yet

Mr. Jefferson requests only injunctive relief against the defendants that he alleges were involved

in the 2020 denial. Docket No. 23 at 28-29. Given that the Court cannot provide the relief

Mr. Jefferson requests, the Court agrees that Mr. Jefferson lacks standing. The Court will overrule

this objection.

2. Objection Two

Mr. Jefferson's second objection focuses on the constitutionality of the SOTMP requirements of

admitting to the crime of which he was convicted, disclosing his sexual history, and submitting to

a polygraph examination. Docket No. 67 at 3-5. Mr. Jefferson argues that the offense he was

charged with "is a 50/50 case of an accuser's word versus the Plaintiffs word," and that it is

inevitable that there will be individuals like him who are convicted for crimes they did not commit

and then are forced to admit to those crimes in order to be released. Id. at 3-4.

Appendix B - Dist. Court Opinion

23 of 75

To support his argument, Mr. Jefferson cites the plurality opinion in McKune v. Lile, 536 U.S. 24,

122 S. Ct. 2017, 153 L. Ed. 2d 47 (2002), which upheld the constitutionality of a Kansas sex

offender treatment program with similar requirements to SOTMP. Id. at 4-5. Mr. Jefferson notes

that McKune involved an inmate with a determinate sentence and argues that the Supreme Court

might be less likely to uphold such a program as applied to people serving indeterminate sentences

like his. Id. at 4. The Court does not, however, need to speculate as to how McKune might apply

to the SOTMP because the Tenth Circuit has already upheld the relevant SOTMP

requirements. See Doe v. Heil, 533 F. App’x 831, 833-41 (10th Cir. 2013) (unpublished)

(citing Searcy v. Simmons, 299 F.3d 1220, 1228 (10th Cir. 2002)). The Court will overrule this

objection.

3. Objection Three

At end of his objection, Mr. Jefferson writes "the Plaintiffpreserves Claims 3 and 5 to be addressed

by the ruling authority of the Supreme Court at such time." Docket No. 67 at 5. Mr. Jefferson's

third claim is a duplicative claim relating to his access to treatment. See Docket No. 23 at 21

(alleging due process violations). His fifth claim asserts that he should be entitled to access

sexually explicit materials. Id. at 25-28.

The Court finds this objection to be improper because it does not "focus attention on those issues

— factual and legal — that are at the heart of the parties' dispute." One Parcel, 73 F.3d at 1059.

"[O]bjections must be specific because only an objection that is sufficiently specific to focus the

district court's attention on the factual and legal issues that are truly in dispute will advance the

policies behind the Magistrate's Act that led us to adopt a waiver rule in the first instance." Zumwalt

v. Astrue, 220 F. App’x 770, 777-78 (10th Cir. 2007) (unpublished) (internal quotations omitted)

Appendix B - Dist. Court Opinion

24 of 75

(holding a series of sentence-long objections to various parts of a recommendation to be

insufficient to preserve an issue). By merely stating that he "preserves" the issues,

Mr. Jefferson does not "engage the magistrate judge's analysis and offer a reasoned argument as

to why the magistrate judge's conclusion was erroneous." Katrina B. v. Kiiakazi, 2021 U.S. Dist.

LEXIS 147760,2021 WL 3465710, at *3 (N.D. Okla. Aug. 6,2021) (citing ZamwaZt, 220 F. App'x

at

777-78). As

a

result,

the

Court

will

overrule

this

objection.

B. Defendants' Objection

The recommendation states that defendants J.R. Hall and Chris Lobanov-Rostovsky "have not

been served in this case." Docket No. 65 at 2 n.3. Mr. Hall and Mr. Lobanov-Rostovsky object,

stating that they have indeed been served and that the magistrate judge granted their request to join

the motion to dismiss. Docket No. 66 at 2. For this reason, Mr. Hall and Mr. Lobanov-Rostovsky

argue that Mr. Jefferson's claims against them should be dismissed as well. Id. at 3.

Unlike the other defendants, who work for the Colorado Department of Corrections ("CDOC"),

Mr. Hall works for the Colorado State Parole Board and Mr. Lobanov-Rostovsky works for the

Sex Offender Management Board of the Colorado Department of Public Safety. Id. at 1-2. CDOC

waived service for its employees. Docket No. 30. On March 11, 2024, the CDOC defendants filed

the motion to dismiss that is the subject of the magistrate judge's recommendation. Docket No. 46.

After being served, Mr. Hall and Mr. Lobanov-Rostovsky appeared on March 15, 2024. Docket

Nos. 50, 51. The same day, Mr. Hall and Mr. Lobanov-Rostovsky moved to join the CDOC

defendants' motion to dismiss. Docket No. 52. On March 21, 2024, the magistrate judge granted

this motion. Docket No. 58.

Appendix B - Dist. Court Opinion

25 of 75

The Court finds no reason that the claims against Mr. Hall and Mr. Lobanov-Rostovsky should not

be dismissed for the same reasons as the CDOC defendants. Therefore, the Court will sustain this

objection to the recommendation. The Court will dismiss the claims against Mr. Hall and Mr.

Lobanov-Rostovsky.

C. Non-Objected to Portions of the Recommendation

The Court has reviewed the rest of the recommendation to satisfy itself that there are "no clear

errorfs] on the face of the record." See Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based

on this review, the Court has concluded that the recommendation is a correct application of the

facts and the law.

IV. CONCLUSION

It is therefore

ORDERED that Report and Recommendation on CDOC Defendants' Motion to Dismiss Third

Amended Complaint [Docket No. 65] is ACCEPTED in part. It is further

ORDERED that plaintiffs Objection [Docket No. 67] is OVERRULED. It is further

ORDERED that Defendants Hall and Lobanov-Rostovsky's Objection to the Magistrate Judge's

Recommendation on Their Motion to Dismiss [Docket No. 66] is SUSTAINED. It is further

ORDERED that defendants' Motion to Dismiss Third Amended Complaint [Docket No. 46]

is GRANTED. It is further

ORDERED that claim one of the third amended complaint is DISMISSED without

prejudice against all defendants. It is further

ORDERED that claim two of the third

prejudice against all defendants. It is further

amended

complaint is DISMISSED with

ORDERED that claim three of the third amended complaint is DISMISSED with

prejudice against all defendants. It is further

Appendix B - Dist. Court Opinion

26 of 75

ORDERED that claim four of the third amended complaint is DISMISSED with

prejudice against all defendants. It is further

ORDERED that claim five of the third amended complaint is DISMISSED with

prejudice against defendants Moses Andre Stancil, Chris Lobanov-Rostovsky, Amanda Retting,

Siobhan Bartlow, Shannon Foltz, and James Bailey. It is further

ORDERED that this case is closed.

DATED March 20, 2025.

BY THE COURT:

/s/ Philip A. Brimmer

PHILIP A. BRIMMER

Chief United States District Judge

Appendix B - Dist. Court Opinion

27 of 75

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 1 of 18

filed 10/22/24

USDC Colorado

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 23-cv-01773-PAB-NRN

JUSTIN A. JEFFERSON,

Plaintiff,

v.

MOSES ANDRE STANCIL,

CHRIS LOBANOV-ROSTOVSKY,

AMANDA RETTING,

SIOBHAN BARTLOW,

SHANNON FOLTZ,

JAMES BAILEY, and

J.R. HALL,

Defendants.

REPORT AND RECOMMENDATION ON

CDOC DEFENDANTS’ MOTION TO DISMISS THIRD AMENDED COMPLAINT

(ECF No. 46)

N. Reid Neureiter

United States Magistrate Judge

This prisoner civil rights case is before the Court pursuant to an Order, ECF No.

47, issued by Chief Judge Philip A. Brimmer referring Defendants Moses Andre Stancil,

Amanda Retting, Siobhan Burtlow, Shannon Folz, and James Bailey (collectively, the

“CDOC Defendants”) Motion to Dismiss Third Amended Complaint (“Motion to

Dismiss”), ECF No. 46. The motion has been fully briefed, see ECF Nos. 62 & 63, and

the Court has heard argument from the parties, see ECF No. 64. Now, having taken

judicial notice of the docket and considered the applicable Federal Rules of Civil

Procedure and case law, the Court RECOMMENDS that the Motion to Dismiss be

GRANTED.

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 2 of 18

filed 10/22/24

USDC Colorado

BACKGROUND1

Plaintiff is an inmate in the custody of the Colorado Department of Corrections

(“CDOC”) serving an indeterminate (ten years to life) sentence under the Colorado Sex

Offender Lifetime Supervision Act of 1998 (“SOLSA”), Colo. Rev. Stat. §§ 18-1.3-1001-

1012. ECF No. 23 at 4, 8. In this 42 U.S.C. § 19832 action, he challenges multiple

aspects of CDOC’s Sex Offender Treatment and Monitoring Program (“SOTMP”). He

brings five claims for relief against seven CDOC employees—five are sued solely in

their official capacities (Moses Andre Stancil, Chris Lobanov-Rostovsky, Amanda

Retting, Siobhan Bartlow, and J.R. Hall),3 while two employees (Shannon Foltz and

James Bailey) are sued in both their individual and official capacities.4 Id. at 2-3, 7-8.

Plaintiffs first claim is brought under the Fourteenth Amendment’s Due Process

Clause. ECF No. 23 at 4, 8-14. The essence of the claim is that Plaintiff must

1 The following allegations are taken from Plaintiffs Third Amended Complaint

(“TAC”), ECF No. 23, and all non-conclusory allegations are presumed true for the

purposes of the Motion to Dismiss. All citations to docketed materials are to the page

number in the CM/ECF header, which sometimes differs from a document’s internal

pagination.

2 To state a claim for relief under § 1983, a plaintiff must establish (1) a violation

of rights protected by the federal Constitution or created by a federal statute or

regulation, (2) that was proximately caused (3) by the conduct of a “person,” (4) who

acted under color of any state statute, ordinance, regulation, custom or usage.

Summum v. City of Ogden, 297 F.3d 995, 1000 (10th Cir. 2002).

3 Defendants Lobanov-Rostovsky and Hall have not been served in this case.

4 Plaintiff seeks numerous forms of declaratory and injunctive relief, along with

money damages from Defendants Foltz and Bailey. ‘Section 1983 plaintiffs may sue

individual-capacity defendants only for money damages and official-capacity defendants

only for injunctive relief.” Brown v. Montoya, 662 F.3d 1152, 1161, n. 5 (10th Cir. 2011)

(citing Hafer v. Melo, 502 U.S. 21,30, 27 (1991)). Thus, Plaintiff’s requests for relief can

be liberally construed as requesting declaratory and injunctive relief from Defendants in

their official capacities, which are simply claims against the CDOC. Plaintiff’s claims for

money damages can be liberally construed as individual-capacity claims against

Defendants Foltz and Bailey since they are sued in both an individual and official

capacity.

2

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 3 of 18

filed 10/22/24

USDC Colorado

participate in the SOTMP to be eligible for parole. Id. Plaintiff has served 11 years of his

10-years-to-life sentence, yet he claims he not been allowed entry into the required

treatment program. As a result, he has been denied parole eligibility four times due to

the lack of treatment. Id. at 4. Plaintiff contends that withholding mandatory treatment

constitutes a major change in the conditions of his confinement by moving his status

from “eligible to be considered for parole” to “ineligible to be considered for parole.” Id.

at 8. As such, he raises a due process claim.

Plaintiffs second claim is that “[t]he Defendants’ policies that require the

revocation of the maintenance of innocence in order to have access to the protected

liberties of timely treatment and the timely ability to progress in treatment violate the

Fifth Amendment[.]” Id. at 14. Plaintiff contends that a requiring an admission of guilt

regarding his underlying conviction is incriminating because the statement could be

used against him in future criminal proceedings—particularly as character evidence in a

sexual assault case to show propensity, motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. Id. at 15-16. Plaintiff also

identifies multiple ways in which this requirement amounts to compulsion by the state:

he will not be admitted into treatment, he will be denied the ability to successfully

progress in treatment, he won’t be deemed “rehabilitated,” and he will remain

(indefinitely) ineligible for parole. Id. at 16-17.

Plaintiffs third claim is duplicative of his first two claims. He claims that

“Defendants’ policies that require the Plaintiff to revoke his maintenance of innocence

infringes on his protected liberties to have Continuous Timely Access to Treatment,

Continuous Ability to Timely Progress in Treatment, and his Fifth Amendment Rights in

3

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 4 of 18

filed 10/22/24

USDC Colorado

violation of substantive due process under the Fourteenth Amendment”; and in support,

Plaintiff incorporates by reference the allegations discussed above. Id. at 21.

In his fourth claim, Plaintiff contends the “policies that require the Plaintiff to

confess past crimes and violations in a Sexual History written statement and through

polygraphs violate the Fifth and Fourteenth Amendment^]” (Id. at 21). The supporting

allegations are similar to but broader than those supporting Claim 2. Instead of focusing

just on the facts underlying the crime for which he was convicted and sentenced, he

challenges the “policy requiring] that the Plaintiff complete a sex history written

narrative and polygraphs covering the engagement of numerous criminal behaviors.” Id.

at 22.

In his final claim, Plaintiff posits that “[t]he Defendants’ Publication Censorship

Policies Violate the Plaintiffs First Amendment Protected Under the Fourteenth

Amendment!.]” Id. at 25. Plaintiff contests the CDOC’s policy to “censor, seize, and

prevent the Plaintiff[‘]s access to view, and the ability to possess, . .. non-obscene,

adult pornography and sexually oriented expression.” (Id. at 26). Plaintiff specifically

takes issue with a provision of the SOTMP treatment contract that, in part, requires him

to agree that he “will not possess, nor view, material that would stimulate or reinforce

[his] criminal or deviant sexual behavior or fantasy, such as, but [not] limited to

pornography or sexually explicit materials at any time[.]” (Id.). Plaintiff also appears to

challenge Administrative Regulation (“AR”) 330-26, which similarly restricts sexually

explicit content. Id. at 27. In general, Plaintiff submits that the CDOC’s policy is not

narrowly tailored in violation of the First Amendment because it prohibits an inmate from

viewing material that is legal, that there is no evidence that viewing or possessing such

4

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 5 of 18

filed 10/22/24

USDC Colorado

materials causes an inmate to become violent or act criminally, and that less restrictive

means are available to further the prison’s goals. Id. at 25-28.

Plaintiff requests injunctive relief that he be provided access to SOTMP

treatment, that all statements made by Plaintiff “of charged and uncharged criminal

behavior and or acts” be destroyed, and that Defendants stop censoring “protected

nudity, non-obscene, and sexually explicit material.” Id. at 29. He also requests

$350,000 in compensatory damages and $650,000 in punitive damages against

Defendants Foltz and Bailey. Id.

The CDOC Defendants move to dismiss the entirely of the TAC under Rule

12(b)(6) of the Federal Rules of Civil Procedure.

LEGAL STANDARDS

I.

Pro Se Plaintiff

Plaintiff proceeds pro se. The Court, therefore, “review[s] his pleadings and other

papers liberally and hold[s] them to a less stringent standard than those drafted by

attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations

omitted). However, a pro se litigant’s “conclusory allegations without supporting factual

averments are insufficient to state a claim upon which relief can be based.” Hall v.

Bellmon, 935 F.2d 1106, 1110 (1 Oth Cir. 1991). A court may not assume that a plaintiff

can prove facts that have not been alleged, or that a defendant has violated laws in

ways that a plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal.

State Council of Carpenters, 459 U.S. 519, 526 (1983); see also Whitney v. New

Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (court may not “supply additional

factual allegations to round out a plaintiff’s complaint”); Drake v. City of Fort Collins, 927

5

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 6 of 18

filed 10/22/24

USDC Colorado

F.2d 1156, 1159 (1 Oth Cir. 1991) (the court may not “construct arguments or theories for

the plaintiff in the absence of any discussion of those issues”). A plaintiff’s pro se status

does not entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d

952, 957 (10th Cir. 2002).

II.

Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides 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,

935 F.2d at 1109. “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) (citing Bell Atlantic Corp. v. Twombly, 550

U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the

plaintiff pleaded facts which allow “the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two

prongs of analysis. First, the Court identifies “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 679-81. Second, the Court

6

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 7 of 18

filed 10/22/24

USDC Colorado

considers 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 679.

However, the Court need not accept conclusory allegations without supporting

factual averments. S. Disposal, Inc., v. Tex. Waste, 161 F.3d 1259, 1262 (10th Cir.

1998). “[TJhe tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556

U.S. at 678. Moreover, “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’ Nor does the complaint

suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.

(citation omitted). “Where a complaint pleads facts that are ‘merely consistent with’ a

defendant’s liability, it ‘stops short of the line between possibility and plausibility of

‘entitlement to relief.’” Id. (citation omitted).

ANALYSIS

i.

Fourteenth Amendment Due Process Claim5

The Court first turns to Plaintiffs due process claim that relates to the denial of

SOTMP treatment.

5 As described above, Plaintiff purports to bring several claims under the

Fourteenth Amendment. However, in Graham v. Connor, 490 U.S. 386, 395 n.10

(1989), the Supreme Court held that when government conduct is constrained by “an

explicit textual source of constitutional protection . . . that Amendment, not the more

generalized notion of ‘substantive due process,’ must be the guide for analyzing these

claims.” See also Albright v. Oliver, 510 U.S. 266, 273 (1994). As such, only Claim 1 is

appropriately governed solely by the Fourteenth Amendment.

7

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 8 of 18

filed 10/22/24

USDC Colorado

The Due Process Clause states, “No State shall. . . deprive any person of life,

liberty, or property, without due process of law.” U.S. Const, amend. XIV, § 1. “The

Fourteenth Amendment’s Due Process Clause protects persons against deprivations of

life, liberty, or property; and those who seek to invoke its procedural protection must

establish that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221

(2005); see also Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012).

The Due Process Clause offers both procedural and substantive protections. The

Court will discuss both.

a. Procedural Due Process

To allege a violation of procedural due process, a plaintiff must establish (1) a

deprivation of an interest in life, liberty, or property, and (2) that the procedures followed

by the government in depriving a plaintiff of that interest did not comport with due

process of law. See Elliott, 675 F.3d at 1244; see also Templeman v. Gunter, 16 F.3d

367, 369 (10th Cir. 1994) (“The Due Process Clause guarantees due process only when

a person is to be deprived of life, liberty, or property.”). Where the deprivation of a

constitutionally-protected interest is alleged, an inmate is entitled to a relatively modest

suite of procedural due process protections. Wolff v. McDonnell, 418 U.S. 539, 559-572

(1974). Specifically, the inmate must be provided: (i) advance written notice of the

charges against him; (ii) the ability to present evidence in his defense, including the right

to call witnesses (unless prohibited due to security reasons); (iii) the right to a neutral

and detached hearing body; and (iv) a written statement of the hearing body’s reasons

for its decision, supported by some evidence in the record. Id.

8

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 9 of 18

filed 10/22/24

USDC Colorado

Here, Plaintiff does not identify any deficiencies in the procedural protections he

was afforded when Defendants decided to terminate/suspend his sex offender

treatment. Accordingly, he has not adequately alleged the second prong of a procedural

due process claim and, to the extent that the TAC can be liberally construed to assert

such a claim, it should be dismissed.

b. Substantive Due Process

The TAC alleges that Plaintiff was given a spot for treatment in 2020, eight years

into his sentence, but that he was then denied entry due to his ongoing appeal.

“Substantive due process bars ‘certain government actions regardless of the

fairness of the procedures used to implement them.’” Brown v. Montoya, 662 F.3d 1152,

1172 (10th Cir. 2011) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 840

(1998)). “The Supreme Court has described two strands of the substantive due process

doctrine. One strand protects an individual’s fundamental liberty interests, while the

other protects against the exercise of governmental power that shocks the conscience.”

Seegmiller v. LaVerkin City, 528 F.3d 762, 767 (10th Cir. 2008). “Prisoners are entitled

to substantive due process; but substantive-due-process rights available to free persons

may be denied to prisoners if the denial bears a rational relation to legitimate

penological interests.” Reedy v. Werholtz, 660 F.3d 1270, 1275 (10th Cir. 2011)

•)

(internal quotations and brackets omitted).

A substantive due process claim likely turns on the existence of a constitutionally

protected liberty interest. The existence of a constitutionally protected liberty interest

depends upon the nature of the interest asserted. See Sandin v. Conner, 515 U.S. 472,

480 (1995). A prisoner is not entitled to any procedural protections in the absence of a

9

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 10 of 18

filed 10/22/24

USDC Colorado

grievous loss. See Morrissey v. Brewer, 408 U.S. 471,481 (1972). Generally, a liberty

interest protected by due process may arise under the United States Constitution or

state law. See Sandin, 515 U.S. at 483-84. However, the Constitution itself does not

create a protected liberty interest in a prisoner’s release (or consideration for parole)

prior to the expiration of a valid sentence. See Swarthout v. Cooke, 562 U.S. 216, 220

(2011) (per curiam); Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1,

7 (1979). A liberty interest may arise under state law if the challenged conditions impose

an “atypical and significant hardship on the inmate in relation to the ordinary incidents of

prison life.” Sandin, 515 U.S. at 484.

Defendants argue that the Tenth Circuit has held an inmate does not have a

liberty interest in timely and adequate SOTMP treatment. That is not necessarily the

case. See Stetzel v. Williams, No. 20-cv-01579-PAB-STV, 2022 WL 1177908, at *7 n.9

(D. Colo. Jan. 28, 2022) (explaining that the Tenth Circuit has not directly addressed

whether an inmate sentenced under SOLSA has a liberty interest in the SOTMP such

that they are entitled to due process prior to being terminated), report and

recommendation adopted, 2022 WL 897103 (D. Colo. Mar. 25, 2022). Some courts in

this District have found that, in certain circumstances, a convicted sex offender in

Colorado may have a state-created liberty interest in continued sex offender treatment if

such treatment is required to be eligible for parole. See Beebe v. Heil, 333 F. Supp. 2d

1011,1017 (D. Colo. 2004); Tillery v. Raemisch, No. 16-cv-00282-WJM-STV, 2018 WL

4777411 at *7 (D. Colo. Oct. 3, 2018) (recognizing that a Colorado state prisoner may

have “a liberty interest in being able to access [sex offender] treatment during his

incarceration within a reasonable period of time, taking into account when and the

10

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 11 of 18

filed 10/22/24

USDC Colorado

relative extent to which he meets the requirements for such treatment under CDOC

regulations.”); Lerner v. Stancil, No. 22-CV-00888-NYW-NRN, 2023 WL 3595998, at *8

(D. Colo. May 23, 2023) (SOLSA “mandates sex-offender treatment, which creates a

‘legitimate claim of entitlement’ to that treatment by SOLSA inmates,” which in turn

“creates a liberty interest for due process purposes”); but see McDaniel v. Dauffenbach,

No. 20-CV-02033-DDD-KLM, 2023 WL 4908370, at *2 (D. Colo. Feb. 3, 2023) (“The

Government is right that Mr. McDaniel does not have a due process liberty interest in

sex offender treatment.”). In Allen v. Clements, 930 F. Supp. 2d 1252 (D. Colo. 2013),

Chief Judge Brimmer found that “SOLSA creates a liberty interest in treatment because

it both mandates treatment and conditions parole on progressing successfully through

treatment” and thus “[i]nmates sentenced under SOLSA have a liberty interest in not

being terminated from treatment without due process.” Id. at 1264, 1266 (citing Beebe,

333 F. Supp. 2d at 1017).

However, even assuming that Plaintiff has a protected liberty interest in

accessing SOTMP treatment, “the right to [sex offender] treatment is not absolute or

unconditional.” Id. at 1264. Thus, the court in Beebe v. Stommel, No. 02-cv-01993-

WYD-BNB (D. Colo. Nov. 13, 2006) (ECF No. 163 at 34-35), held it is constitutional to

condition receipt of sex offender treatment on an “inmate’s willingness and ability to

comply with the rules and regulations governing treatment” and that courts must defer to

prison officials “to determine what rules and regulations are necessary to ensure

successful treatment that meets institutional concerns." Furthermore,

in Turner v. Safley, 482 U.S. 78, 89 (1987), the Supreme Court held that

when inmates’ constitutional rights—even fundamental ones otherwise

warranting strict scrutiny—are implicated by prison policies, the prison

policy prevails so long as it is reasonably related to a legitimate penological

11

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 12 of 18

filed 10/22/24

USDC Colorado

objective. Thus, at least as far as the “fundamental liberty” test goes in this

case, [the plaintiffs] substantive Due Process claim will fail unless he can

show that either: (i) the terms of the SOTMP are not reasonably related to

a legitimate penological interest, or (ii) the effect that the SOTMP has on his

First and Fifth Amendment rights is shocking to the judicial conscience.

Firth v. Shoemaker, No. 09-cv-00224-MSK-MJW, 2011 WL 4501971, at *7 (D. Colo.

Sept. 29, 2011), aff’d, 496 F. App’x 778 (1 Oth Cir. 2012).

As will be discussed in more detail below, requiring Plaintiff to admit guilt, and

thus forgo his criminal appeal, in order to be admitted to SOTMP is a reasonable policy

that neither offends the Fifth Amendment nor shocks the conscience for the purposes of

substantive due process. See id. at *8. (“The inmate may still choose to invoke his Fifth

Amendment rights and fail to complete the SOTMP, but that choice (and the parolerelated consequences that flow from it) will not thereafter support a claim for substantive

Due Process.”).

More significantly, Defendants argue that Plaintiffs claim is now moot because

he no longer has a pending appeal and is on the list to receive SOTMP in the future. In

the TAC, Plaintiff states that he submitted a reentry form in March 2023, see ECF No.

23 at 14-15, after his appeals and/or habeas proceedings had concluded, see ECF No.

63-1 (state and federal court dockets showing that as of January 2021, certiorari has

been denied in Plaintiffs criminal appeal and his habeas petition has been terminated).6

It also appears from the TAC that Plaintiff did, in fact, admit to engaging in the behavior

for which he was convicted. See ECF No. 23 at 15 (“Plaintiff was threatened and

compelled ... to comply with the policy to revoke his maintenance of innocence as the

Plaintiff did not want to spend the rest of his life in prison.”). Defendants confirmed this

6 The Court may take judicial notice of these documents. See GeoMetWatch

Corp. v. Behunin, 38 F.4th 1183, 1205 (10th Cir. 2022).

12

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 13 of 18

filed 10/22/24

USDC Colorado

at the motion hearing and informed the Court that Plaintiff was eligible and on the list for

treatment. Thus, because Plaintiffs due process claim is premised on the denial of

SOTMP treatment due to his pending appeal, and Plaintiff concedes that his appeals

and other post-conviction proceedings have concluded, Defendants argue that claim is

now moot. See Bacote v. Fed. Bureau of Prisons, No. 22-1325, 2024 WL 4490517, at

*3 (10th Cir. Oct. 15, 2024) (“A case becomes constitutionally moot if it ceases to

present a real and substantial controversy with respect to which specific relief may be

fashioned.”) (citation and quotation marks omitted).

Given that Plaintiff was not pursuing any appeal at the time this case was filed

and had, in fact, submitted SOTMP reentry forms, this is more accurately characterized

as an issue of standing rather than mootness. See Brown v. Buhman, 822 F.3d 1151,

1163 (10th Cir. 2016) (“Standing concerns whether a plaintiff’s action qualifies as a case

or controversy when it is filed; mootness ensures it remains one at the time a court

renders its decision.”). Nevertheless, Defendants’ argument that the Court cannot

fashion any injunctive remedy for Plaintiff’s alleged injury is well taken. See id. at 1164

(“To establish Article III standing, a plaintiff must show (1) an injury in fact, (2) a

sufficient causal connection between the injury and the conduct complained of, and (3)

a likelihood that the injury will be redressed by a favorable decision") (emphasis added)

(citation and quotation marks omitted). And as to the two Defendants against whom

Plaintiff seeks monetary damages—Defendants Folz and Bailey—the TAC does not

allege that they played any part in the 2020 decision to deny SOTMP treatment based

on Plaintiffs appeal. Instead, they are alleged to have forced Plaintiff to sign the reentry

13

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 14 of 18

filed 10/22/24

USDC Colorado

forms in 2023, well after the appeals process had ended. Thus, as currently pled,

Plaintiff does not have standing to bring his Fourteenth Amendment claim.

For these reasons, Plaintiffs Fourteenth Amendment due process claim (Claim

1) should be dismissed.

II.

Fifth Amendment Claims

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. The privilege against self­

incrimination has two components: incrimination and compulsion. See Lile v. McKune,

224 F.3d 1175, 1179 (10th Cir. 2000), rev’d on other grounds, 536 U.S. 24 (2002). To

state a cognizable Fifth Amendment claim, Plaintiff must allege that: (1) the statements

desired by prison officials carried the risk of incriminating him, and (2) the penalty he

suffered amounted to compulsion. See Doe v. Heil, 533 F. App’x 831,837 n.4 (10th Cir.

2013) (unpublished); Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). “[T]he

protection afforded by the Fifth Amendment privilege against self-incrimination” is

“broadly construed.” United States v. Von Behren, 822 F.3d 1139, 1144 (10th Cir.

2016). “The touchstone of the Fifth Amendment is compulsion . . . [however], [t]he Fifth

Amendment’s text does not prohibit all penalties levied in response to a person’s refusal

to incriminate himself.” Id. at 1147 (citations and internal punctuation omitted).

Plaintiff cannot maintain a § 1983 claim based on an alleged Fifth Amendment

violation. As stated above, Plaintiff must allege facts to show that the CDOC’s policy of

requiring Plaintiff to admit his crime or sexual history or take a polygraph is not rationally

related to a legitimate penological interest. See Turner, 482 U.S. at 89; Gee v. Pacheco,

627 F.3d 1178, 1187-88 (10th Cir. 2010). In Doe v. Heil, 533 F. App’x 831, 839-40

14

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 15 of 18

filed 10/22/24

USDC Colorado

(10th Cir. Aug, 26, 2013) (unpublished), the Tenth Circuit recognized that the CDOC

has a legitimate penological interest in the rehabilitation of sex offenders before their

release on parole “that is furthered by requiring [sex offenders], without regard to their

Fifth Amendment stake in avoiding self-incrimination, to submit to a polygraph and

admit their full sexual history.” See also Searcy v. Simmons, 299 F.3d 1220, 1228 (10th

Cir. 2002) (“The state’s interest in rehabilitating sex offenders is a valid one, and the

requirement for admission of responsibility is considered a legitimate part of the

rehabilitative process.”); McKune v. Lite, 536 U.S. 24, 33 (2002) (“When convicted sex

offenders reenter society, they are much more likely than any other type of offender to

be rearrested for a new rape or sexual assault. States thus have a vital interest in

rehabilitating convicted sex offenders. Therapists and correctional officers widely agree

that clinical rehabilitative programs can enable sex offenders to manage their impulses

and in this way reduce recidivism. An important component of those rehabilitation

programs requires participants to confront their past and accept responsibility for their

misconduct.”) (citations omitted); Allen v. Falk, 624 F. App’x 980, 985 (10th Cir. 2015)

(reaffirming the holding of Doe v. Heil).

In his response, Plaintiff “combats” Turner and argues that Heil was wrongly

decided. The Court is bound to follow Supreme Court precedent, see Hutto v. Davis,

454 U.S. 370, 375 (1982) (“[A] precedent of this Court must be followed by the lower

federal courts no matter how misguided the judges of those courts may think it to be.”),

and, like other courts in the District, it finds the reasoning of Heil persuasive. Therefore,

the Court declines Plaintiff’s invitation to ignore these decisions. “To the extent that the

SOTMP causes tension with an inmate’s invocation of his Fifth Amendment rights, the ‘

15

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 16 of 18

filed 10/22/24

USDC Colorado

therapeutic and rehabilitative goals behind the SOTMP constitute legitimate penological

interests that prevail.” Firth, 2011 WL 4501971, at *8. Plaintiffs Fifth Amendment claims

should be dismissed.

III.

First Amendment Claim

In his fifth claim for relief, Plaintiff alleges that the CDOC and SOTMP’s

prohibition on possessing and viewing sexually explicit material violates his First

Amendment rights. The Court agrees with Defendants that this claim should be

dismissed.

“Inmates have a First Amendment right to receive information while in prison to

the extent the right is not inconsistent with prisoner status or the legitimate penological

objectives of the prison.” Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004).

Restrictions on a prisoner’s First Amendment free speech and association rights are

constitutional if the restrictions are reasonably related to legitimate penological interests.

Turner, 482 U.S. at 89. In applying this standard, courts are to consider the following

factors: (1) whether there is a valid rational connection between the prison regulation or

practice and a legitimate governmental interest; (2) whether the regulation or practice

allows inmates alternative means of exercising the subject constitutional right; (3) the

impact of accommodation of the asserted right on guards, other inmates, and the

allocation of resources generally; and (4) the absence of ready alternatives to the

regulation or practice. Id. at 89-91. “The burden, moreover, is not on the State to prove

the validity of prison regulations but on the prisoner to disprove it.” Overton v. Bazzetta,

539 U.S. 126 (2003).

16

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 17 of 18

filed 10/22/24

USDC Colorado

As Defendants note, federal courts have roundly permitted prisons to prohibit

sexually explicit material. See ECF No. 46 at 15 (collecting cases). The Court agrees

“that the restriction of sexually explicit publications in a federal prison setting is

reasonably related to the legitimate penological interests of rehabilitation of inmates and

security of the institution as a whole." See Jordan v. Sosa, 577 F. Supp. 2d 1162, 1170

(D. Colo. 2008); see also Jones v. Salt Lake Cnty., 503 F.3d 1147, 1153 (10th Cir.

2007) (upholding county jail regulation barring inmates from receiving “sexually explicit

material”); Hunsaker v. Jimerson, No. 08-CV-01479-REB, 2011 WL 4374801, at *3 (D.

Colo. 2011) (where Judge Robert E. Blackburn, applying the Turner factors, found the

CDOC regulation at issue here, AR 300-26, to be facially constitutional). This is

especially true as related to sex offenders. See Colo. Rev. Stat. § 18-1.3-1001 (stating

that sex offender treatment and supervision “is necessary for the safety, health, and

welfare of the state”).

The Court also finds that Plaintiff has alternate means of exercising his First

Amendment rights as he can access to a broad range of other publications and written

material, and that “accommodating plaintiff’s asserted constitutional right would place an

undue burden on prison resources and possibly threaten the security in the prison as

well as the safety of the guards and inmates.” Jordan, 577 F. Supp. 2d at 1171. Finally,

although a prison’s implemented restriction cannot be an exaggerated response, neither

are prison officials required to adopt the least restrictive alternative to achieve the

legitimate penological goal. Thornburgh v. Abbott, 490 U.S. 401,410-11 (10th Cir.

March 28, 2011). The Court is not persuaded that allowing Plaintiff to possess explicit

materials would somehow be a feasible alternative in furthering the penological interests

17

Case No. l:23-cv-01773-PAB-NRN

Document 65

pg 18 of 18

filed 10/22/24

USDC Colorado

reflected in the SOTMP and the CDOC’s regulations. Indeed, “[ejxempting him from the

ban on sexually explicit materials could undermine [Plaintiffs rehabilitation and the

[CDOC’s] plan for his rehabilitation.” Jordan, 577 F. Supp. 2d at 1172.

Plaintiffs First Amendment claim should be dismissed.

CONCLUSION

It is hereby RECOMMENDED that the CDOC Defendants’ Motion to Dismiss

Third Amended Complaint (“Motion to Dismiss”), ECF No. 46, be GRANTED.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(c) and Fed. R. Civ. P. 72(b)(2),

the parties have fourteen (14) days after service of this recommendation to serve

and file specific written objections to the above recommendation with the District

Judge assigned to the case. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy. The District Judge need

not consider frivolous, conclusive, or general objections. A party’s failure to file

and serve such written, specific objections waives de novo review of the

recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140,148-53

(1985), and also waives appellate review of both factual and legal questions.

Makin v. Colo. Dep’t of Corr., 183 F.3d 1205,1210 (10th Cir. 1999); Talley v. Hesse,

91 F.3d 1411,1412-13 (1 Oth Cir. 1996).

Dated:

A

October 22, 2024

Denver, Colorado

N. Reid. Neureiter

United States Magistrate Judge

18

Additional material

from this filing is

available in the

Clerk's Office.