Opinion
Civil Action 20-cv-02284-CMA-KLM
07-27-2023
HUNTER ADAM MELNICK, Plaintiff, v. TONYA GAMBLIN, CPO, DEAN WILLIAMS, Exec. Dir. Of Prisons, JOE BRADY, CPS, SARA PHELPS, CPS, JOE WHITE, CPM, TERESA MITCHELL, CPO, and JANE/JOHN DOES Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L MIX UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendants' Motion to Dismiss Amended Prisoner Complaint [#100] (the “Motion”). Plaintiff filed a Response [#106]. The Court has reviewed the briefs, the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court recommends that the Motion [#100] be granted in part and denied in part.
“[#100]” is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.LCivR 72.1(c), the Motion [#100] has been referred to the undersigned for a recommendation regarding disposition. See [#101].
The Court finds it is not necessary to wait for the filing of a Reply. See .C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”).
For the purposes of resolving the Motion [#100], all well-pled facts from the Amended Complaint [#90] are accepted as true and viewed in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015).
This matter arises from parole conditions imposed on Plaintiff in a former period in which Plaintiff was on parole. See generally Compl. [#2]. Plaintiff is subject to supervised parole under Colorado's Sex Offender Lifetime Supervision Act (“SOLSA”), Colo. Rev. Stat. § 18-1.5-1005, due to a 2006 sexual assault conviction. See Motion [#100] at 3-4. Plaintiff, who proceeds as a pro se litigant, filed the initial Complaint [#2] while he was on parole in August 2020. Plaintiff filed an Amended Complaint [#90] in November 2022.
Defendants assert that there has been some confusion as to what pronoun(s) Plaintiff prefers. Motion [#100] at 2 n. 2. The Court will simply refer to Plaintiff as “Plaintiff” throughout this Recommendation rather than using a pronoun which Plaintiff might not prefer.
Since the inception of the custodial term, Defendants note that Plaintiff has been released on parole on four separate occasions. See Motion [#100] at 2 and Ex. B. On each of the first three occasions - February through June 2017, September through December 2017, and May 2019 through September 2020 - Plaintiff violated parole conditions and was returned to CDOC physical custody. Id. Plaintiff began the fourth, current, period of parole on January 17, 2023. Id. and Ex. C.
The Court must construe the filings of a pro se litigant liberally. See Haines v. Kerner, 404 U.S. 594, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [Plaintiff's] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
Plaintiff asserts six claims in connection with the parole conditions: (1) a First Amendment claim in connection with “a near total ban” on Plaintiff's internet access (Claim One); (2) a First Amendment claim in connection with “a total ban on social media” (Claim Two); (3) a Fourteenth Amendment claim “for unwarranted intrusion into familial relationships” (Claim Three); (4) a First and Fourteenth Amendment violation related to a liberty interest in freedom of occupation in connection with the fact that Plaintiff was prohibited from working at a certain job (Claim Four); (5) a First Amendment retaliation claim (Claim Five); and (6) a claim that SOLSA, Colo. Rev. Stat. § 18-1.3-1005, is unconstitutional (Claim Six). Am. Compl. [#90] at 8-13. Plaintiff seeks injunctive and declaratory relief, as well as compensatory and punitive damages. Id. at 6.
Defendants' Motion [#100] seeks dismissal of Plaintiff's Amended Complaint [#90] pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Id. at 5. Defendants argue that: (1) Plaintiff fails to state a claim for violation of constitutional rights pursuant to Rule 12(b)(6); (2) Plaintiff has not alleged personal participation of any Defendants other than Gamblin and Phelps, the latter of whom is only implicated in the First Amendment claim; (3) Plaintiff's claims for injunctive relief are moot and should be dismissed pursuant to Rule 12(b)(1); and (4) Defendants are entitled to qualified immunity. Id.
II. Standard of Review
A. Federal Rule of Civil Procedure 12(b)(1)
A motion to dismiss pursuant to Rule 12(b)(1) attacks a court's subject matter jurisdiction. The determination of a court's jurisdiction over the subject is a threshold question of law. Madsen v. U.S. ex. rel. U.S. Army Corps of Engineers, 841 F.2d 1011, 1012 (10th Cir.1987). The objection that a federal court lacks subject matter jurisdiction pursuant to Rule 12(b)(1) may be raised by a party, or by a court on its own initiative, at any stage in the litigation. Arbaugh v. Y & H Corp., 546 U.S. 500, 506 (2006). If at any time, the Court determines that it lacks subject matter jurisdiction, the Court must dismiss the action. Fed.R.Civ.P. 12(h)(3); Arbaugh, 546 U.S. at 506.
A 12(b)(1) motion may take two forms - a facial attack or a factual attack on the complaint. When reviewing a facial attack on the complaint, the Court accepts the allegations of the complaint as true. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). When reviewing a factual attack, the court “may not presume the truthfulness of the complaint's factual allegations[,]” and has “wide discretion to allow affidavits [and] other documents . . . to resolve disputed jurisdictional facts. Id.
B. Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted”). “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.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted).
To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact to state a claim to relief that is plausible on its face.” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations.”) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Id. (brackets in original; internal quotation marks omitted). The factual allegations must also “be enough to raise a right to relief above the speculative level.” Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct,” a factual allegation has been stated, Abut it has not show[n] that the pleader is entitled to relief, “ as required by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
C. Qualified Immunity
Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities for monetary damages. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982) (“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken, and qualified immunity is appropriate).
III. Analysis
A. Injunctive/Declaratory Relief and official Capacity Claims
The first issue addressed is the Court's subject matter jurisdiction over Plaintiff's claims for injunctive and declaratory relief, which implicate the official capacity claims. Defendants argue that Plaintiff is no longer subject to the parole directives at issue or the supervision of the parole officers who are Defendants in this case. Motion [#100] at 17. Defendants aver that Plaintiff's parole was revoked in the Fall of 2020, and that Plaintiff was released on a new period of parole in January of 2023. Id. Accordingly, Defendants argue that the claims for injunctive and declaratory relief are moot. Id.
The Court may take judicial notice of other courts' proceedings. See, e.g., Doe v. Heil, No. 08-cv-02342-WYD-CBS, 2009 WL 3158165, at *1 n.1 (D. Colo. Sept. 28, 2009), amended, No. 08-cv-02342-WYD-CBS, 2010 WL 1258011 (D. Colo. Mar. 26, 2010). Moreover, the court may consider matters outside the pleadings on a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1). Holt, 46 F.3d at 1003.
“Article III of the Constitution limits federal courts to deciding 'Cases' and 'Controversies,' and an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kan. Ex rel. Kan. Dep't for Child. & Fams. v. SourceAmerica, 874 F.3d 1226, 1236 (10th Cir. 2017) (quoting Kingdomware Techs., Inc. v. United States, 136 S.Ct. 1969, 1975 (2016) (internal quotation marks omitted)). “In considering mootness, [the court] ask[s] whether granting a present determination of the issues offered will have some effect in the real world.” SourceAmerica, 874 F.3d at 1236 (quoting Fleming v. Gutierrez, 785 F.3d 442, 444-445 (10th Cir. 2015) (internal quotation marks omitted)). “A case is moot . . . where the relief sought can no longer be given or is no longer needed.” Id. (internal quotation marks omitted).
Here, Plaintiff was subject to the parole directives at issue by Defendants from July to September of 2020. Am. Compl. [#90] at 8. Plaintiff is no longer subject to those parole conditions as that parole was revoked, and the Court finds that the claims for injunctive and declaratory relief are therefore moot. Granting a present determination of the claims for injunctive and declaratory relief against the Defendants in this case will have no effect in the real world, and more specifically, no effect on Defendants' behavior towards Plaintiff. See Edmond v. Raemisch, 593 Fed.Appx. 761, 765 (10th Cir. 2014) (affirming the district court's finding that claim for injunctive relief regarding past parole conditions which were no longer in effect was moot). The fact that Plaintiff has been re-released on parole and may be subject to similar conditions (see Response [#106] at 2) does not affect this analysis. Id. As the Tenth Circuit noted in Edmond, “[i]t is true that [plaintiff's] past parole periods have been short, and the same conditions keep being imposed each time [plaintiff] is re-released. But that does not mean that the conditions will evade review, as [plaintiff] is free to initiate a new lawsuit challenging the current conditions of parole.” Id.
Accordingly, the Court recommends that the Motion [#100] be granted as to the claims for injunctive and declaratory relief based on mootness. It is further recommended that these claims be dismissed without prejudice. See Rio Grande Silvery Minnow v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2006) (“We have no subject-subject matter if a case is moot.”); Brereton v. Bountiful City Corp., 535 F.3d 1213, 1218 (10th Cir. 2006) (stating that dismissal for lack of subject matter jurisdiction must be without prejudice).
Related to the injunctive and declaratory relief claims, Plaintiff sues Defendant Williams only in his official capacity and all other Defendants in their official and individual capacities. See Am. Compl. [#90] at 2-3, 7. The Motion [#100] does not discuss the official capacity claims. Nonetheless, the Court recommends that the extent that Defendants are state officials, the official capacity claims be dismissed. As this Court noted in another case filed by Plaintiff, “'suits against state officials in their official capacity . . . should be treated as suits against the state.'” Melnick v. Raemisch, No. 19-cv-00154-CMA-KLM, 2021 WL 4133919, at *6 (D. Colo. Sept. 10, 2021) (“Raemisch”) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). Such suits are equivalent to suits against a public entity and are barred by the Eleventh Amendment. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989). The Tenth Circuit has therefore held that “§ 1983 plaintiffs may sue individual-capacity defendants only for money damages and official-capacity defendants only for injunctive [or declaratory] relief.” Brown v. Montoya, 662 F.3d 1152, 1161 n.5 (10th Cir. 2011) (citing Hafer, 502 U.S. at 27, 30). Since the Court has recommended dismissal of Plaintiff's claims for injunctive/declaratory relief, the official capacity claims are thus moot. Accordingly, it is recommended that the official capacity claims be dismissed, and that Williams, who sued only in his official capacity, be dismissed from the case.
B. First Amendment Claims
1. Claims One and Two: Internet and Social Media Ban
The Court addresses these claims together since they both relate to internet access. Claim One alleges that Defendant Gamblin violated Plaintiff's First Amendment rights to free speech and free association by “a near total ban on the internet” from July 2020 to September 2020. Am. Compl. [#90] at 8. Plaintiff further alleges in Claim I that when Plaintiff met with Defendant Phelps to speak with her about this ban, Phelps “said that it would remain in place and Plaintiff was lucky Plaintiff had any access to a computer at all.” Id. Accordingly, the Court deems Claim One to be asserted against Defendants Gamblin and Phelps. Claim Two alleges a related First Amendment violation in connection with a total ban on social media imposed by Defendant Mitchell from May 21, 2019, to March 1, 2020, and Defendant Gamblin from March 1, 2020, to September 4, 2020. Id. Accordingly, the Court deems Claim Two to be asserted against Mitchell and Gamblin.
Plaintiff added Defendant Mitchell as a party to this suit in Plaintiff's Amended Complaint [#90]. However, at present, Defendant Mitchell has not been served and is thus not a party to the Motion [#100]. See id. at 1 n.1.
Defendants state that Defendants Phelps, Mitchell, and Brady were supervisors in the parole department (Motion [#100] at 4), and it appears that Mitchell may have been Plaintiff's parole officer before Gamblin. Id. at 5.
To the extent that Plaintiff alleges in this claim that SOLSA, Colo. Rev. Stat. § 18-1.31005, is unconstitutional, this argument is addressed in connection with Claim Six.
Defendants argue that Plaintiff has failed to state a claim upon which relief can be granted in either Claim One or Claim Two. Motion [#100] at 14. Defendants aver that Plaintiff's ban on the internet and social media is not “total” because Plaintiff was permitted to use the internet to seek employment, for treatment programs, and to communicate with Plaintiff's wife. Id. at 15. Accordingly, the Motion [#100] asserts that the alleged ban does not violate the Supreme Court's decision in Packingham v. North Carolina, 582 U.S. 98 (2017). Id. Plaintiff asserts, on the other hand, that the three areas that Defendants specify above are the only things that Plaintiff can do on the internet; thus, the ban is a “near total ban.” Am. Compl. [#90] at 8; Response [#106] at 1-3. Plaintiff asserts, for example, that Plaintiff cannot use websites like Coursera, Google, and Upwork for education. Am. Compl. [#90] at 11. Additionally, Plaintiff alleges that the ban on social media is total. Id. at 9.
Turning to the Court's analysis, the Supreme Court in Packingham made clear that “[a] fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen ....” Id., 582 U.S. at 104. The internet and social media are examples of those “places.” Id. (stating that “in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace-the ‘vast democratic forums of the Internet' in general, . . . and social media in particular”). Id. (internal quotation omitted). Accordingly, the Packingham Court held that “to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights.” Id. at 108.
Accepting Plaintiff's allegations as true for purposes of the Motion [#100], Plaintiff alleges that the ban on internet access is total or near total. Am Compl. [#90] at 8-9. Plaintiff cannot access most websites and can only use the internet for three limited purposes. See id. at 8. The Court finds that. liberally construing these allegations at this juncture of the litigation, Plaintiff has plausibly pled a ban that may violate Packingham and give rise to a First Amendment violation. See Raemisch, 2021 WL 4133919, at *8 (holding that allegations of a near total ban plausibly alleged a constitutional violation).
Nonetheless, the Supreme Court recognized that the internet and social media can be used to commit serious crimes. Packingham, 582 U.S. at 106. Accordingly, the Court found that First Amendment rights in connection with social media did not bar states from enacting laws regulating the use of social media to protect against criminal conduct, including sex offender conduct. Id. at 107. Moreover, parole conditions may infringe on otherwise protected rights if the restrictions are reasonably related to the purposes of parole. Raemisch, 2021 WL 4133919, at *8 (citing United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995); United States v. Payne, 181 F.3d 781 (6th Cir. 1999)). The Tenth Circuit has held that “[p]arolees do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special parole restrictions....These restrictions are designed to ensure rehabilitation and protect the public.” United States v. Lewis, 71 F.3d 358, 361 (1995) (quotations and citations omitted).
Here, it is undisputed that Plaintiff was on parole and supervision under SOLSA at the time of the events in question. Defendants argue that the parole restrictions are reasonably related to Plaintiff's parole and thus justify the infringement on Plaintiff's First Amendment rights. See Motion [#100] at 15. The Court agrees that while it is reasonable to limit the internet use of a convicted sex offender on parole, see, e.g., Raemisch, 2021 WL 4133919, at *8, Plaintiff alleges that Defendant Gamblin limited Plaintiff's internet access to such an extent that Plaintiff could not access online learning materials or even Google. Am. Compl. [#90] at 11. Further, there is no assertion in this case that Plaintiff was able to obtain broader access to the internet if Plaintiff obtained permission from the parole office. See, e.g., United States v. Perrin, 925 F.3d 1044, 1050 (8th Cir. 2019) (finding that an internet ban was not a total ban because the plaintiff could obtain approval from the parole officer to use the internet, and that the condition thus did not involve a greater deprivation of liberty than was reasonably necessary); see also Raemisch, 2021 WL 4133919, at *8. Finally, the ban on social media is allegedly total. Am Compl. [#90] at 9. Based on the foregoing, the Court finds at this juncture of the litigation that it can be plausibly inferred that the restrictions on the internet and social media may not be reasonably related to the purposes of Plaintiff's parole, and that Plaintiff has stated a First Amendment violation.
Accordingly, the Court recommends that the Motion [#100] be denied as to Claim One asserted against Gamblin and Phelps and Claim Two asserted as to Defendants Gamblin and Mitchell.
2. Claim Five: First Amendment Retaliation
Claim Five asserts that Gamblin retaliated against Plaintiff by imposing the parole restrictions at issue (“except those at issue in Claims Two and Six”) “immediately after Defendant Gamblin found out about” lawsuits Plaintiff had previously filed (case numbers 19-cv-00154-CMA-KLM and 19-cv-01550-CMA-KLM). Am. Compl. [#90] at 12. It is averred that Plaintiff had been employed for over a year, had a stable residence, and things were going well on parole, but that “came crashing down” when Gamblin found out about the two cases Plaintiff had filed. Id. This allegedly caused Plaintiff's “entire livelihood” to be stripped, including Plaintiff's “career, education, living with spouse, internet, association with family and friends, and even working on Plaintiff's lawsuits.” Id. Plaintiff also alleges that Defendant Joe White, as the manager of the Englewood Parole Department, “approved of the conduct” of Defendants Mitchell, Phelps, and Brady, and “assisted in the enforcement and personally approved of the implementation of the AR 250 series of parole policies.” Id. Thus, the Court finds that this claim is asserted as to Defendants Gamblin, White, Mitchell, Phelps, and Brady.
To state a First Amendment retaliation claim, a plaintiff must allege that: (1) he or she engaged in constitutionally protected activity; (2) the defendant took actions that caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the adverse actions were substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007); see also Banks v. Katzenmeyer, 645 Fed.Appx. 770, 772 (10th Cir. 2016). A plaintiff is required to allege specific facts showing that, but for the retaliatory motive, the adverse incidents in question would not have taken place. Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990).
Turning to the analysis, the Court assumes for purposes of the Motion [#100], as did Defendants (Motion [#100] at 9), that the first two elements are met. Defendants argue, however, that Plaintiff has not shown that the third element is met - that Defendant Gamblin's actions were substantially motivated by Plaintiff's lawsuits. Motion [#100] at 9. To satisfy this requirement, Plaintiff may establish “a causal connection between the protected conduct and the adverse employment action by proffering evidence of circumstances that justify an inference of retaliatory motive, such as protected conduct closely followed by adverse action.” Unal v. Los Alamos Pub. Schs., 638 Fed.Appx. 729, 741-42 (10th Cir. 2016) (quotation omitted). However, “unless the [adverse action] is very closely connected in time to the protected activity, the plaintiff must rely on additional evidence beyond temporal proximity to establish causation.” Meiners v. Univ. of Kan., 359 F.3d 1222, 1231 (10th Cir. 2004) (alterations in original) (quoting Anderson v. Coors Brewing Co., 181 F.3d 1171, 1179 (10th Cir. 1999)). “A six-week period between protected activity and adverse action may be sufficient, standing alone, to show causation, but a three-month period, standing alone, is insufficient.” Id.
Plaintiff alleges as to that issue that Defendant Gamblin imposed harsher parole directives “immediately after [she] found out about” Plaintiff's two lawsuits. Am. Compl. [#90] at 12. Plaintiff further alleges that none of the restrictions would have been imposed but for the lawsuits. Plaintiff's allegations are conclusory, as they are devoid of facts as to when, specifically, Gamblin found out about the lawsuits, the facts which support this alleged discovery, and when Gamblin imposed the parole restrictions at issue in relation to her discovery of the lawsuits. As the Supreme Court has stated, a complaint does not “suffice if it tenders naked assertion[s] devoid of further factual enhancement.” Iqbal, 556 U.S. at 678; see also Bates v. Dyer, No. 1:23-cv-16, 2023 WL 4073577, at *4 (S.D. Ohio June 12, 2023) (“'conclusory allegations of temporal proximity are not sufficient to show retaliatory motive'”) (quoting Skinner v. Bolden, 89 Fed.Appx. 579, 579-580 (6th Cir. 2004)); Doby v. Bear, No. CIV-14-1423-F, 2015 WL 3540879, at *2 (W.D. Okla. June 3, 2015) (finding that petitioner's statement that after an unspecified time he “immediately began pursuing” relief was conclusory). Accordingly, the Court finds that Plaintiff has not plausibly shown a temporal connection between the alleged discovery of the lawsuits and the parole restrictions imposed by Gamblin.
Plaintiff's attempt to show a causal link between the parole directives imposed by Gamblin and her learning of the pending lawsuits is also conclusory, as Plaintiff does not aver any facts to support this contention. See Sherrat v. Utah Dep't of Corrections, 545 Fed.Appx. 744, 747 (10th Cir. 2013) (“[m]ere allegations of retaliation, without more, are insufficient to show a retaliatory motive.”). Thus, Plaintiff's allegations can essentially be construed as asserting that it must be the case that Defendant Gamblin engaged in the various acts in retaliation because she learned of the filing of other lawsuits (neither of which involved Defendant Gamblin), without any factual allegations to give context to or support to the allegations. While Plaintiff references in this claim emails and call recordings that are “central to the complaint” (Am. Compl. [#90] at 12), Plaintiff does not explain how these emails support Plaintiff's assertion of retaliatory intent in connection with the restrictions. It is precisely these sorts of vague and conclusory allegations that cannot sustain a retaliation claim under the First Amendment. See, e.g., Frazier v. Dubois, 922 F.2d 560, 562 n.1 (10th Cir. 1990). Therefore, the Court finds that Plaintiff has not pled sufficient facts to state a claim for First Amendment retaliation against Defendant Gamblin.
In the Response [#106], Plaintiff cites for the first time the content of certain emails, id., at 2, and also attaches emails for the Court to consider in connection with this claim. However, a plaintiff cannot “amend [the] complaint by adding factual allegations in response” to a motion to dismiss. Abdulina v. Eberl's Temporary Servs., 79 F.Supp.3d 1201, 1206 (D. Colo. 2015) (citing Jojola v. Chavez, 55 F.3d 488, 494 (10th Cir. 1995)). Moreover, the attached emails are matters outside the pleadings, and the Court declines to consider them in connection with the Motion [#100] under Rule 12(b)(6). See Lowe v. Town of Fairland, 143 F.3d 1378, 1381 (10th Cir. 1998) (Courts have broad discretion in determining whether or not to accept materials beyond the pleadings.) Even if the emails were considered (which would likely require conversion of the motion into a motion for summary judgment), the Court does not see how they support Plaintiff's claims that Gamblin retaliated against Plaintiff when she found about the prior lawsuits.
The Court also finds that this claim should be dismissed as to Defendants White, Brady, and Mitchell, and Phelps because Plaintiff failed to plausibly aver their personal participation. ‘“Individual liability under § 1983 must be based on personal involvement in the alleged constitutional violation.'” Foote v. Spiegel, 118 F.3d 1416, 1423-1424 (10th Cir. 1997) (quotation omitted). Plaintiff does not allege any retaliatory conduct by Defendant Phelps, Michell, or Brady in Claim Five. In fact, as to Brady, Plaintiff does not allege any specific conduct of Brady which violated Plaintiff's constitutional rights.
As to Defendant White, Plaintiff asserts that he “approved of the conduct” of Mitchell, Phelps, Brady, and Gamblin, and “assisted in the enforcement and personally approved of the implementation of the AR 250 series of parole policies.” Am. Compl. [#90] at 12. Again, however, Mitchell, Phelps, and Brady are not alleged to have retaliated against Plaintiff, and approval of any conduct of theirs would not lead to supervisory liability in the retaliation claim. As to Defendant Gamblin, a conclusory allegation that White “approved of” her conduct is not sufficient to establish supervisory liability. See Fogel v. Gallegos, 523 F.3d 1147, 1162 (10th Cir. 2008) (“the defendant's role must be more than one of abstract authority over individuals who actually committed a constitutional violation[;]” the plaintiff must show that an affirmative link “exists between the constitutional deprivation and either the supervisor's personal participation, his exercise of control or direction, or his failure to supervise”). Similarly, as to White's alleged assistance in and approval of the AR 250 series of parole policies, Plaintiff does not allege that White participated in the decision to impose these policies on Plaintiff. See Vigil v. Lawrence, No. 18-cv-01499-WJM-NRN, 2021 WL 2633516, at #3-4 (D. Colo. June 25, 2021) (finding allegations that the defendants “approved” unspecified “policies, procedures, and practices” that were at issue in the case were inadequate to support supervisory liability). ! tn fact, the retaliation claim alleges that Gamblin was the one that decided to impose the more restrictive parole conditions on Plaintiff when she learned of the other lawsuits filed by Plaintiff.
Further as to Defendants White and Brady, it appears that Claim Five is the only claim that they are parties to. Since Plaintiff failed to allege their personal participation in this claim, it is recommended that Defendants White and Brady be dismissed from the case.
Based on the foregoing, the Court recommends that the Motion [#100] be granted as to Claim Five, asserting First Amendment retaliation. Further, because Plaintiff has not stated a plausible constitutional violation in connection with this claim, the Court recommends that Defendants be granted qualified immunity. However. the Court recommends that the claim be dismissed without prejudice at this juncture because the Court cannot find that amendment would be futile. See Reynoldson v. Schillinger, 907 F.2d 124, 127 (10th Cir. 1990) (explaining that if “it is all possible that the party against whom the dismissal is directed can correct the defect in the pleading or state a claim for relief[,]” particularly when the litigant is pro se, the Court dismisses without prejudice so that the plaintiff can seek leave to amend).
C. Other Claims
1. Claim Three: Interference with Familial Relationships
This claim, asserted against Defendant Gamblin, avers that Gamblin prohibited Plaintiff from having contact with Plaintiff's parole sponsor Ryan Sullivan and “family” members “including but not limited to Olga Payne [and] Lee Payne.” Am. Compl. [#90] at 10. Additionally, Plaintiff alleges that Gamblin unduly denied Plaintiff's permission to go places and to live with Plaintiff's wife. Id. Defendants argue that Plaintiff has failed to meet the burden to show interference with familial relationships regarding Plaintiff's wife, and that the other relationships do not constitute protected relationships. Motion [#100] at 12.
This case was stayed for a period of time pending resolution by the Denver District Court of the validity of Plaintiff's marriage due to the fact it could potentially impact this claim. Se Order [#114] at 1. Defendants now concede that the recent ruling from the Denver District Court on this issue has no immediate impact on Plaintiff's familial association claim. Memo. Concerning the Impact of Denver Dist. Ct. Proceedings [#116] ¶ 8. The Court agrees, as Plaintiff was found to be a putative spouse pursuant to Colo. Rev. Stat. § 14-2-111 at the time of the alleged conduct at issue. See Decree of Invalidity and Putative Spouse [#117-1] at 4-5; see also Colo. Rev. Stat. § 14-2-111 (stating that “[a] putative spouse acquires the rights conferred upon a legal spouse” until knowledge that the marriage is invalid terminates spousal status).
The right to familial association has long been recognized as a “subset” of the freedom of intimate association. See Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993). It is based on the “concept of liberty in the Fourteenth Amendment,” and grounded in substantive due process. Id. (quotation omitted). This right has been held to extend to the relationship between an inmate and his or her spouse. See, e.g., Muniz-Savage v. Addison, 647 Fed.Appx. 899, 905-06 (10th Cir. 2016). The Supreme Court has also recognized familial rights in non-parental relationships, but the parameters of that interest are “less well-defined.” United States v. White, 647 Fed.Appx. 899, 905-06 (10th Cir. 2015).
To state a claim for the deprivation of the right of familial association, a plaintiff must allege that (1) the defendants intended to deprive plaintiff of a protected relationship; and (2) balancing this interest in the plaintiff's protected relationship against the state's interests in protecting health and safety, the defendants either unduly burdened plaintiff's relationship or effected an “unwarranted intrusion” into that relationship. Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014). “In conducting this balancing, the court will consider, among other things, the severity of the infringement on the protected relationship, the need for defendants' conduct, and possible alternative courses of action.” Id. (citing Griffin, 983 F.2d at 1548).
a. Association with Wife
Defendants argue that they did not place an undue burden on a familial relationship with Plaintiff's wife because the Amended Complaint [#90] avers that Plaintiff is permitted to engage in video visitation with Plaintiff's wife. Motion [#100] at 13. Defendants further argue that Plaintiff has failed to show how the limitations placed on the relationship between Plaintiff and Plaintiff's wife were not reasonably related to legitimate penological interests. Id. (citing Burkhart v. Florez, No. 20-CV-00732-RM-NYW, 2021 WL 326941, at *15 (D. Colo. Jan. 30, 2021), report and recommendation adopted, No. 20-CV-00732-RM-NYW, 2021 WL 951280 (D. Colo. Mar. 12, 2021)).
The Court finds that Plaintiff's familial association claim is broader than what is claimed by the Defendants. Although the Amended Complaint [#90] acknowledges that Plaintiff could engage in video visitation with Plaintiff's wife (id. at 8), Plaintiff was not permitted to live with Plaintiff's wife. Id. at 10. Further it is averred that Plaintiff submitted “approximately 6 safety plans to have permission to go places with Plaintiff's wife and every single one of them was denied by Defendant Gamblin.” Id. The Court finds at this stage of the litigation, where the allegations must be liberally construed, that Plaintiff's allegations plausibly satisfy the requirement that Defendants either unduly burdened Plaintiff's relationship or effected an “unwarranted intrusion” into that relationship. Thomas, 765 F.3d at 1196; see Melnick v. Marlowe, No. 21-cv-03316-CMA-KLM, 2022 WL 2796667, at *7 (D. Colo. Feb. 15, 2023) (Mix, M.J.), report and recommendation adopted, 2023 WL 2674420, (D. Colo. Mar. 29, 2023).
As Defendants note, Plaintiff does not specifically allege in this claim that that the actions complained of “were not reasonably related to legitimate penological interests.” See Burkhart, 2021 WL 326941, at *14 (D. Colo. Jan. 30, 2021). However, when the totality of the Amended Complaint [#90] is considered, Plaintiff alleges that all of the parole restrictions, including the restriction on living with Plaintiff's wife, occurred because Gamblin retaliated against Plaintiff after finding out about Plaintiff's previous lawsuits. Id. at 12. This plausibly supports an inference that the restrictions on Plaintiff's association with Plaintiff's wife were not reasonably related to legitimate penological interests. In addition, Defendants did not address whether in balancing the interest in Plaintiff's protected relationship against the state's interests in protecting health and safety, the allegations could satisfy the requirement that Defendants either unduly burdened Plaintiff's relationship or effected an “unwarranted intrusion” into that relationship. Marlowe, 2023 WL 2796667, at *7. The Tenth Circuit has held that deciding “[w]hether the right to familial association has been violated requires the court to conduct a factintensive balancing test not ordinarily suitable for the Rule 12(b)(6) stage.” Thomas, 756 F.3d at 1196.
In conclusion, construing the facts in the light most favorable to Plaintiff and making all reasonable inferences in Plaintiff's favor, the Court finds that the allegations in the Amended Complaint [#90] satisfy the requirements of a familial association claim regarding Plaintiff's wife. Accordingly, the Court recommends that the Motion [#100] be denied as to this portion of Claim Three against Defendant Gamblin.
b. Association with Others
As noted earlier, Plaintiff also argues in Claim Three that Defendant Gamblin deprived Plaintiff of a relationship with a parole sponsor and family members including Olga and Lee Payne. Am. Compl. [#90] at 10. Defendants argue that this claim must be dismissed because these are not protected relationships. Motion [#100] at 14. More specifically, Defendants argue that there is no plausible claim that a relationship with a “parole sponsor” is the kind of relationship to which constitutional protection attaches. Id. “Nor is there a reasonable claim that a relationship between a plaintiff and individuals identified solely with the descriptor ‘family member', without further elaboration, are entitled to . . . protection.” Id.
Turning to the Court's analysis, the freedom of intimate association protects associational choice as well as biological connection. Trujillo v. Board of Cty. Comm'rs of Santa Fe Cty., 768 F.2d 1186, 1188 (10th Cir. 1985). The Supreme Court has thus recognized that “‘choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State.'” Id. (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 104 S.Ct. 3244, 3249 (1984)).
Turning to Olga and Lee Payne, the only identified family members other than Plaintiff's wife, non-custodial familial relationships are not afforded the “the same degree of protection” as custodial ones. Trujillo, 768 F.2d at 1139-1140. However, even when the familial connection is strong, like that between parent and child, or weaker like it is here as to family members whose relationship with Plaintiff is not identified, the Court must weigh the harm to the relationship against the state's interest in safety. Thomas, 765 F.3d at 1196.
Here, while it is averred that Plaintiff was prohibited from having any contact with Olga and Lee Payne, it is unclear whether this means that he could not communicate with them in any manner or whether Plaintiff was merely prohibited from visiting them. See Am. Compl. [#90] at 10 (stating that Plaintiff “could not have any contact” with family members but that Plaintiff used to have permission “to visit” family members). Thus, unlike the allegations concerning Plaintiff's wife, Plaintiff does not inform the Court about “the severity of the infringement on the protected relationship, the need for defendants' conduct, and possible alternative courses of action.” Thomas, 765 F.3d at 1196 (citing Griffin, 983 F.2d at 1548). Plaintiff also does not plead facts to support why Defendant Gamblin imposed restrictions on Plaintiff's relationships with these family members, whose specific relationship with Plaintiff is not identified. The claim thus does not plausibly plead allegations regarding this relationship and how it was interfered with, and it is recommended that the Motion [#100] be granted as to this portion of Claim Three.
As to Plaintiff's allegation that he could not have any contact with Plaintiff's parole sponsor (Motion [#100] at 14), the same type of deficiencies exist as described above in connection with the claim as to Olga and Lee Payne. Moreover, there is no allegation that this sponsor is related in any to Plaintiff, so a familial association claim would not appear to lie. However, as noted by the Roberts court, there is “a broad range of human relationships that may make greater or lesser claims to constitutional protection from particular incursions by the State. Determining the limits of state authority over an individual's freedom to enter into a particular association therefore unavoidably entails a careful assessment of where that relationship's objective characteristics locate it on a spectrum from the most intimate to the most attenuated of personal attachments.” Id., 468 U.S. at 620. Here, Plaintiff has not explained in any manner his relationship with the parole sponsor, or provided any authority from which the Court could find that this is a protected relationship. Accordingly, the Court finds that the Motion [#100] must also be granted as to the portion of Claim Three regarding the parole sponsor.
Based on the foregoing, the Court recommends that the Motion [#100] be granted as to the familial association claim in Claim Three as to the relationships with Olga and Lee Payne and Plaintiff's parole sponsor. Further, because Plaintiff has not stated a plausible constitutional violation in connection with this portion of Claim Three, the Court recommends that Defendants be granted qualified immunity. It is, however, recommended that this claim be dismissed without prejudice because Plaintiff may be able to amend the Complaint to state a plausible claim. See Reynoldson, 907 F.2d at 127.
2. Claim Four: Right to Work
Plaintiff alleges in Claim Four that Defendant Gamblin violated Plaintiff's right to engage in Plaintiff's chosen field of private employment when she directed that Plaintiff could not work at Plaintiff's job. Am. Compl. [#90] at 11. It is averred that Plaintiff's pursuit of a software development career was negatively impacted by Gamblin's parole directive, and that the directive prevented Plaintiff from engaging in educational programs (Coursera, Google, Uplink) relevant to Plaintiff's chosen profession. Id. It is further averred that this “severely hindered Plaintiff's ability to find and maintain employment as . . . certifications are important in the software field....” Id. Defendants argue that Plaintiff's claim is subject to dismissal because the work interruption imposed by Defendant Gamblin was reasonable and merely temporary. Motion [#100] at 10-12.
“[T]he liberty component of the Fourteenth Amendment's Due Process Clause includes some generalized due process right to choose one's field of private employment, but a right which is nevertheless subject to reasonable government regulation.” Conn v. Gabbert, 526 U.S. 286, 291-292 (1999). Thus, where “broad government regulation” is reasonable, the right to choose one's field of private employment is subject to restrictions. See Rocky Mountain Rogues v. Town of Alpine, 375 Fed.Appx. 887, 894 (10th Cir. 2010). The imposition of parole conditions that prohibit working in certain conditions may constitute reasonable government regulation. See Prynne v. Settle, 848 Fed.Appx. 93, 104 n.8 (4th Cir. 2021). Moreover, the Supreme Court has held that the right to choose one's field of private employment is not violated when the state action does not constitute a “complete prohibition of the right to engage in a calling” but is only a brief interruption in vocational activity as a practical matter. Conn, 526 U.S. at 292 (“That right is simply not infringed by the inevitable interruptions of our daily routine as a result of legal process, which all of us may experience from time to time.”). Finally, even where the Fourteenth Amendment is implicated by state action in connection with a job, “because the right to choose one's vocation is not fundamental, it is subject only to rational basis review and will be upheld if the ‘government regulation' is ‘reasonable.'” Rocky Mountain Rogues, 375 Fed.Appx. at 894.
Here, accepting the allegations of the Amended Complaint [#90] as true, Plaintiff alleges that Defendant Gamblin prohibited Plaintiff from working at a specific, albeit unspecified, job which the Court infers was in the software development field. See Am. Compl. [#90] at 11. However, Plaintiff does not allege that Gamblin prohibited Plaintiff from working in the broader field of software development. The fact that it may be difficult to obtain employment because of the parole restrictions (the alleged inability to continue coursework for certification), is not sufficient to state a due process claim. Prynne, 848 Fed.Appx. at 104. Moreover, the restrictions on Plaintiff's ability to work were merely temporary. See Am. Compl. [#90] at 11 (“These events transpired from July 2020 to September 2020 ....”). As such, the Court finds that the alleged work restrictions are insufficient to state a claim for relief. Conn, 526 U.S. at 292.
The Court also finds that Plaintiff does not plead sufficient facts to support a claim that Defendant Gamblin's actions related to the work restriction, as they relate to the Fourteenth Amendment claim, were unreasonable beyond Plaintiff's conclusory allegation that Gamblin “thought that Plaintiff[‘]s employer thought too highly of the Plaintiff.” Id. The state has a significant interest in supervising persons on parole, especially sex offenders. Raemisch, 2021 WL 4133919, at *8 (“[T]he Parole Board certainly has an interest in imposing restrictions, even severe restrictions, on Plaintiff's activities to protect the public and children given that [Plaintiff] is a sex offender.”) Moreover, “parole conditions may infringe on otherwise constitutionally protected liberties if the restrictions are reasonably related to the purposes of parole.” Id. Here, restrictions on a paroled sex-offender's computer use, which was likely part of the job at issue in software development, as well as a limitation of the internet and social media, undoubtedly satisfy the rational basis test, and Plaintiff has not plausibly alleged otherwise.
Accordingly, the Court respectfully recommends that the Motion [#100] be granted as to Claim Four, the Fourteenth Amendment claim. Further, because Plaintiff has not stated a plausible constitutional violation in connection with this claim, the Court recommends that Defendants be granted qualified immunity. It is further recommended that this claim be dismissed with prejudice because the Court finds that amendment of this claim would be futile.
3. Claim Six: Colo. Rev. Stat. § 18-1.3-1005
Plaintiff's final claim is a facial and as-applied challenge to SOLSA, Colo. Rev. Stat. § 18-1.3-1005. See Am. Compl. [#90] at 13. Defendants argue that this claim should be dismissed because the Court has already rejected the same claim in another of Plaintiff's pending actions. Motion [#100] at 15-16 (citing Raemisch, 2021 WL 4133919, at *14). The Court agrees that in the Raemisch case, District Judge Christine M. Arguello rejected the same claims to SOLSA.
As to Plaintiff's facial challenge, Judge Arguello noted the Supreme Court's holding that facial challenges are disfavored and require the plaintiff to show “that no set of circumstances exists” in which the statute at issue would be valid. Id. (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). Here, as in the Raemisch case, Plaintiff did not “even come close to meeting this burden.” Id. While Plaintiff argues that the phrase “severely restricted activities” in the text of the SOLSA is overbroad and invites arbitrary power, and that the phrase is vague (Amended Complaint [#90] at 13), Plaintiff does not plausibly aver any facts from which the Court can find “that no set of circumstances exists” in which the statute would be valid. Raemisch, 2021 WL 4133919, at *14. “The mere fact that one can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” Melnick v. Camper, 487 F.Supp.3d 1039, 1058 (D. Colo. 2020) (quoting United States v. Williams, 553 U.S. 285, 303 (2008)). Id.
Regarding the “as applied” challenge, Plaintiff argues that the statute and the administrative regulation promulgated under the statute have been used to violate Plaintiff's civil rights in several ways, and that “[t]his shows a pattern of abuse” from Defendants Williams, Mitchell, and Gamblin. Am. Compl. [#90] at 13. Again, however, as in the Raemisch case, Plaintiff
fails to explain how the alleged arbitrary enforcement relates to SOLSA. The statute makes clear that it is intended to “minimize the risk to the public to the greatest extent possible,” and its provisions appear tailored to meet that goal. C.R.S. § 18-1.3-1005(2). Melnick has not plausibly shown that the statute “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).
Accordingly, the Court recommends that the Motion [#100] be granted as to Claim Six, and that this claim be dismissed with prejudice because the Court finds that amendment would be futile. See Reynoldson, 907 F.2d at 127.
IV. Conclusion
For the reasons set forth above, IT IS HEREBY RECOMMENDED that the Motion [#100] be GRANTED IN PART AND DENIED IN PART. Specifically, IT IS RECOMMENDED that the Motion [#100] be GRANTED as to the claims for injunctive and declaratory relief, and that they be DISMISSED WITHOUT PREJUDICE based on mootness.
IT IS FURTHER RECOMMENDED that the official capacity claims be DISMISSED, and that Defendant Williams, who is sued only in his official capacity, be DISMISSED from the case.
IT IS FURTHER RECOMMENDED that the Motion [#100] be granted and Defendants be given qualified immunity as to (1) Claim Three, in part, as to the claims concerning family members other than Plaintiff's wife and Plaintiff's parole sponsor, and this portion of claim Three be DISMISSED WITHOUT PREJUDICE; (2) Claim Four, and that this claim be DISMISSED WITH PREJUDICE; (3) Claim Five, and that this claim be DISMISSED WITHOUT PREJUDICE; and (5) Claim Six, the challenge to the constitutionality of SOLSA, and that this claim be DISMISSED WITH PREJUDICE.
IT IS FURTHER RECOMMENDED that the Motion [#100] be DENIED as to (1) Claim One against Defendants Gamblin and Phelps, (2) Claim Two against Defendants Gamblin and Mitchell; and (3) the portion of Claim Three against Defendant Gamblin as to the familial association claim involving Plaintiff's wife.
IT IS FURTHER RECOMMENDED that Defendants White and Brady be DISMISSED from the case for lack of personal participation.
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (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 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).