Diaz v. Heil et al

Filing 31

ORDER granting 17 Defendants Amended Motion to Dismiss, and all of Plaintiffs claims are DISMISSED WITH PREJUDICE; and The Clerk shall enter judgment and close the case. Each party shall bear his or her own attorneys fees and costs, by Judge William J. Martinez on 2/24/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-1098-WJM-MJW
JOSÉ A. DIAZ,
Plaintiff,
v.
JILL LAMPELA, and
BRANDON SHAFFER,
Defendants.

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS

Plaintiff José A. Diaz (“Plaintiff”) brings this action against Jill Lampela, in her
official capacity as Chief of Behavioral Health for the Colorado Department of
Corrections (“CDOC”), and Brandon Shaffer, in his official capacity as the Chairman of
the Colorado Board of Parole, (together, the “Defendants”),1 claiming constitutional
violations under 42 U.S.C. § 1983. Before this Court is Defendants’ Amended Motion to
Dismiss (“Motion”). (ECF No. 17.) For the foregoing reasons, the Motion is granted.
I. BACKGROUND
The following allegations, contained in Plaintiff’s Complaint, are accepted as true
for purposes of Defendants’ Motion.
Plaintiff is an inmate within the CDOC at the Kit Carson Correctional Center,
Burlington, Colorado. (Compl. (ECF No. 1) ¶ 18.) In 2002, Plaintiff pled guilty to and

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On February 13, 2014, Jill Lampela was substituted for Margaret Heil and Brandon
Shaffer was substituted for Anthony P. Young. (ECF No. 27.)

was convicted of a Class IV felony sex offense, for which Plaintiff was sentenced to
imprisonment for an indeterminate term of eight years to life, in accordance with the
Colorado Sex Offender Lifetime Supervision Act (“SOLSA”), C.R.S. § 18-1.3-1004(1)(a).
(Id. ¶ 17.)
Plaintiff has served eight years of his sentence and is now eligible for parole. (Id.
¶ 20.) After Plaintiff was incarcerated, he entered Phase I of CDOC’s Sex Offender
Treatment and Monitoring Program (“SOTMP”). (Id. ¶ 21.) After completing Phase I, he
entered Phase 2. (Id.) On January 27, 2010, Plaintiff was “terminated” from Phase II
for certain behavior which the CDOC termed a “time out” from treatment. (Id. ¶ 22.)
On January 31, 2012, a clinical psychologist conducted an independent psychosexual evaluation on Plaintiff. (Id. ¶ 23.) The evaluation, which was reduced to a
written reported (the “Report”), diagnosed Plaintiff as being a pedophiliac. (Id. ¶ 24.)
The Report recommended that Plaintiff receive treatment at the Colorado Institute for
Mental Health at Pueblo, because the CDOC/SOTMP did not have PPG assessment
facilities. (Id. ¶ 25.)
On May 5, 2012, Plaintiff notified the CDOC by letter of the Report and requested
re-admission to the SOTMP. (Id. ¶ 26.) On May 31, 2012, the CDOC responded by
letter, instructing Plaintiff to fill out the enclosed application “if [Plaintiff was] interested in
being considered for re-entry to the SOTMP treatment program . . . .” (Id. ¶ 7.) Plaintiff
followed these instructions and submitted the application to the CDOC on August 17,
2012. (Id. ¶ 28.) When Plaintiff did not receive a response to his request, he submitted
a grievance regarding CDOC’s refusal to re-admit him to the SOTMP. (Id. ¶ 29.) On
January 22, 2013, the CDOC Grievance Office responded to Plaintiff’s grievance and
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denied Plaintiff’s request for re-admittance into the SOTMP, stating that Plaintiff had
failed to use the correct application. (Id. ¶ 31.)
On May 21, 2012, the Parole Board denied Plaintiff parole. (Id. ¶ 32.) It issued a
“Notice of Colorado Parole Board Action” form that indicated that its reasons for denial
were “Risk Related.” (Id.) The two categories listed on the form under “Risk Related”
were: (1) “Severity/Circumstances of offense,” and (2) “Prior criminal history.” (Id.)
On these facts, Plaintiff filed this action against Defendants on April 24, 2013.
(Compl.) Plaintiff asserts five claims, all under 42 U.S.C. § 1983: (1) violation of his
Eighth Amendment right to be free from cruel and unusual punishment, in that he was
denied treatment for the serious medical condition of pedophilia, (2) a separate Eighth
Amendment violation in that his ongoing imprisonment without treatment is punishment
for his status of being a pedophiliac, (3) violation of the Bill of Attainder Clause, in that
the Parole Board inflicted additional punishment beyond his minimum mandatory
sentence without a judicial trial, (4) a separate Eighth Amendment violation in that the
denial of parole punished him for his status of being a pedophiliac, and (5) violation of
his Fourteenth Amendment right to procedural due process, in that the Parole Board
failed to use the correct standard governing parole of inmates sentenced under SOLSA.
(Id. pp. 12-18.) On June 19, 2013, Defendants moved to dismiss all of Plaintiff’s claims
under Fed. R. Civ. P. 12(b)(6). (ECF No. 17.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to
dismiss a claim in a complaint for “failure to state a claim upon which relief can be
granted.” In evaluating such a motion, a court must “assume the truth of the plaintiff’s
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well-pleaded factual allegations and view them in the light most favorable to the
plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir.
2007). In ruling on such a motion, the dispositive inquiry is “whether the complaint
contains ‘enough facts to state a claim to relief that is plausible on its face.’” Id. (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Granting a motion to dismiss “is
a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the
liberal rules of pleading but also to protect the interests of justice.” Dias v. City & Cnty.
of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). “Thus, ‘a
well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable, and that a recovery is very remote and unlikely.’” Id. (quoting
Twombly, 550 U.S. at 556).
III. ANALYSIS
Plaintiff asserts five causes of action, two against Lampela and three against
Shaffer. Defendants’ Motion argues that all five claims should be dismissed for failure
to state a cause of action. The Court will address Plaintiff’s claims in turn.
A.

8TH AMENDMENT CLAIM FOR FAILURE TO PROVIDE TREATMENT
Plaintiff brings an 8th Amendment claim against Lampela. Plaintiff alleges that

Lampela was deliberately indifferent to Plaintiff’s condition of pedophilia, which Plaintiff
claims is a serious psychological condition requiring treatment. (Compl. ¶¶ 49-57.)
The Eighth Amendment protects against the infliction of “cruel and unusual
punishments.” U.S. Const. Amend. VIII. The Eighth Amendment’s prohibition against
cruel and unusual punishments encompasses deliberate indifference by prison officials
to a prisoner’s serious medical needs. Howard v. Waide, 534 F.3d 1227, 1235 (10th
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Cir. 2008) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). Deliberate indifference to
serious medical needs can be exhibited by prison medical staff in failing to properly treat
a medical condition, or “by prison guards in intentionally denying or delaying access to
medical care.” Estelle, 429 U.S. at 104-05. Conduct that is either “an unnecessary and
wanton infliction of pain” or “repugnant to the conscience of mankind” is “sufficiently
harmful to evidence deliberate indifference.” Id. at 105-06.
An Eighth Amendment claim for deliberate indifference involves “a two-pronged
inquiry, comprised of an objective component and a subjective component.” Self v.
Crum, 439 F.3d 1227, 1230 (10th Cir. 2006). The objective prong examines whether a
medical need is “‘sufficiently serious’ to be cognizable under the Cruel and Unusual
Punishment Clause.” Mata v. Saiz, 427 F.3d 745, 753 (10th Cir. 2005) (quoting Farmer
v. Brennan, 511 U.S. 825, 834 (1994)). The subjective prong examines the state of
mind of the defendant, asking whether “the official knows of and disregards an
excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837.
With regard to the objective prong, the mere fact that Plaintiff is a convicted
sexual offender does not mean that he has a psychological disorder or that he is in
need of psychiatric treatment. See Riddle v. Mondragon, 83 F.3d 1197, 1204 (10th Cir.
1996); Ramos v. Vaughn, 1995 WL 386573, at *5 (E.D. Pa. June 27, 2005) (“[T]he
Court is not aware of any legal authority for the proposition that the need for sex
offender treatment is a serious medical need for Eighth Amendment purposes.”).
“Because society does not expect that prisoners will have unqualified access to health
care, deliberate indifference to medical needs amounts to an Eighth Amendment
violation only if those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9 (1992)
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(citing Estelle, 429 U.S. at 103–104). A medical need is serious if it is “one that has
been diagnosed by a physician as mandating treatment or one that is so obvious that
even a lay person would easily recognize the necessity for a doctor’s attention.” Ramos
v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (citation omitted).
Here, although Plaintiff has been diagnosed as having the mental condition of
pedophilia, treatment for his pedophilia has not been mandated. (Compl. ¶¶ 24-25
(stating that the Report “recommends treatment at the Colorado Institute for Mental
Health at Pueblo because the CDOC/SOTMP does not have phallometric (PPG)
assessment facilities.”).) Further, Plaintiff does not allege that he is in a substantial
amount of pain as a result of not having access to PPG assessment facilities. See
Hashman v. Heil, 16 F.3d 416, at *1 (10th Cir. 1994) (“[I]n order to find an Eighth
Amendment violation, the deliberate indifference to a medical need must rise to the
level of unnecessary and wanton infliction of pain[.]”). Nor does Plaintiff allege that his
condition is so severe that even a lay person would easily recognize the necessary for
treatment. See Ramos, 639 F.2d at 575. The Court, therefore, finds that Plaintiff has
failed to present sufficient evidence establishing that his pedophilia is a serious medical
need entitled to protection under the Eighth Amendment.
Since Plaintiff has failed to established a serious medical need, the Court does
not need to analyze the subjective prong of the deliberate indifference test.
Accordingly, the Court finds that Plaintiff’s Eighth Amendment Claim for deliberate
indifference to a serious medical need fails to state a cause of action.
B.

8TH AMENDMENT CLAIMS FOR PUNISHMENT FOR MENTAL STATUS
Plaintiff brings separate Eighth Amendment claims against Lampela and Shaffer,
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arguing that their actions punished him for his “status of having a mental condition or
predisposition to commit sex offenses or for the status of being a pedofile [sic].”
(Compl. ¶¶ 58-62, 71-76.) He argues: (1) that SOLSA “is a bifurcated indeterminate
sentencing scheme,” (2) that he has already completed the “punishment” phase of his
sentence, and (3) that his continued incarceration on the remaining indeterminate
portion of his sentence is intended to serve as some form of non-punitive
“rehabilitation.” (ECF No. 18 at 8, 13.) Plaintiff argues that by being denied re-entry
into the SOTMP by Lampela, he has been denied medical treatment during the “nonpunishment” rehabilitation phase of his incarceration, and is therefore being punished
for his mental status. (Id. ¶ 61.) Similarly, Plaintiff argues that the application of
Shaffer’s Parole Board Policy, which considered Plaintiff’s original crime as a parole
consideration, punished Plaintiff because of his mental status. (ECF No. 18 at 12.)
Plaintiff’s arguments hinge on a misunderstanding of the sentencing scheme
applicable to his offense of conviction. Plaintiff argues that Vensor v. People, 151 P. 3d
1274 (Colo. 2007), stands for the proposition that “[w]hereas the Parole Board may
properly consider punishment in its release decision under Colorado’s general felony
scheme, the Parole Board release decisions under [SOLSA] must be made outside the
context of punishment, once the minimum mandatory ‘punishment’ phase is satisfied
and the offender is eligible for parole . . . .” (ECF No. 18 at 13-14.) Vensor states that
the “declaration of purpose [of SOLSA] makes clear the legislature’s intent to provide for
treatment and extended supervision, rather than to punish sex offenders with terms of
incarceration longer than those of other felons of the same class.” Vensor, 151 P. 3d at
1274, 1278 (Colo. 2007). The Court agrees with the analysis of Vensor in a similar
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case that “[t]his language does not establish the remarkable proposition urged by
[Plaintiff] - that a SOLSA sentence is composed of a ‘punishment’ phase, that is
completed upon the inmate serving the minimum term of the sentence, coupled with a
non-punitive ‘rehabilitation’ phase, consisting of the remaining incarceration of the
inmate solely for treatment purposes.” Davies v. Young, 2013 WL 5450308, at *5 (D.
Colo. 2013).
The eight years-to-life sentence imposed on Plaintiff was just that: a directive that
he serve a minimum of at least eight years of incarceration, plus as much additional
time in custody as the Parole Board determines is necessary before he is deemed fit to
be released on parole. See id. As the Parole Board has yet to find that Plaintiff meets
this requirement, he remains properly incarcerated pursuant to his sentence.
Accordingly, the Court finds that Plaintiff’s Eighth Amendment claims against Lampela
and Shaffer for punishment based on Plaintiff’s mental status fail to state causes of
action.
C.

BILL OF ATTAINDER CLAIM
Plaintiff brings a Bill of Attainder claim against Shaffer. Plaintiff alleges that the

Parole Board’s actions in denying him parole under the standards used at his last parole
hearing violate the Bill of Attainder Clause. (Compl. ¶¶ 63-70.) Specifically, Plaintiff
argues that denying parole because of “Severity/Circumstances of offense” and “Prior
criminal history”, instead of “Public Risk (Concerns for Public Safety”), “inflict[ed]
punishment” on Plaintiff by increasing his punishment as to the original offense without
a judicial trial. (Id. ¶¶ 66, 68.)
The Bill of Attainder Clause of the United States Constitution prohibits states
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from passing “any Bill of Attainder.” U.S. Const., Art. I, § 10, cl.1. A Bill of Attainder
“legislatively determines guilt and inflicts punishment upon an identifiable individual
without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs.,
433 U.S. 425, 468 (1977). To determine whether a statute constitutes a Bill of
Attainder, the Court considers whether: (1) the challenged statute falls within the
historical meaning of legislative punishment, (2) the statute, viewed in terms of the type
and severity of the burdens imposed, reasonably can be said to further a nonpunitive
legislative purpose, and (3) the legislative record indicates a congressional intent to
punish. Taylor v. Sebelius, 189 Fed. Appx. 752, 758 (10th Cir. 2006) (citing Selective
Servs. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 852 (1984)).
The Parole Board is not a legislative body, but is instead a part of the Executive
Branch of the Colorado state government. See People v. Gallegos, 975 P.2d 1135,
1138 (Colo. Ct. App. 1998) aff’d, 2 P.3d 716 (Colo. 2000). Therefore, the Parole
Board’s actions were not legislative, and the Bill of Attainder Clause is inapplicable.
Plaintiff argues that Garner v. Jones, 529 U.S. 244 (2000), supports his claim.
(ECF No. 18 at 10.) In Garner, the Supreme Court found that a parole board’s decision
to adversely modify its own regulations governing the time period between an inmate’s
parole hearings constituted a violation of the ex post facto clause (the Bill of Attainder’s
textual neighbor in Art. I, § 10). 529 U.S. at 249. However, the challenged action in
Garner was the parole board’s modification of its own regulations, not the determination
of an individual’s suitability for parole. See Davies, 2013 WL 5450308, at *3.
“Promulgation of regulations is akin to a legislative act, whereas an individualized
determination of a particular individual’s case is more akin to a judicial or executive
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decision.” Id. Thus, the Court does not find that Garner stands for the proposition that
the Parole Board’s determination was “legislative” in nature.
Moreover, a denial of parole is not an imposition of a new and separate
punishment. “Release on parole is simply a continuation of the inmate serving out the
terms of his judicially-imposed sentence, still under the supervision of the Department of
Corrections, albeit with certain privileges granted to the inmate to facilitate his
successful return to society.” Davies, 2013 WL 5450308, at *3 (citing Danielson v.
Dennis, 139 P.3d 688, 692-93 (Colo. 2006)); see also People v. Norton, 63 P.3d 339,
344 (Colo. 2003) (a period of parole “is nevertheless part of the punishment imposed on
a criminal wrongdoer”). “Thus, a denial of parole release is nothing more than a
requirement that the inmate continue to serve his sentence inside of prison, rather than
outside it.” Davies, 2013 WL 5450308, at *3. Therefore, the Court finds that Plaintiff
has failed to allege that his parole denial is an unconstitutional Bill of Attainder.
D.

PROCEDURAL DUE PROCESS CLAIM
Finally, Plaintiff brings a Due Process claim against Shaffer, alleging that the

Parole Board applied the “wrong standard/criteria” when denying his parole, instead
using “the criteria applicable to general population inmates (not sentenced under
[SOLSA]) which incorporates a punishment consideration.” (Compl. ¶ 81.) Plaintiff
argues that this “punishment consideration” should not be applied to inmates who were
sentenced under SOLSA. (Id. ¶¶ 11, 41.) Plaintiff argues that by applying the wrong
standard, the Parole Board failed to provide Plaintiff with a parole hearing. (Id. ¶ 80.)
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. To allege
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a violation of procedural due process, a plaintiff must first establish a deprivation of an
interest in life, liberty, or property. See Elliot v. Martinez, 675 F.3d 1241, 1244 (10th Cir.
2012).
Plaintiff appears to acknowledge case law holding that SOLSA does not confer
sex offenders with a liberty interest in parole. (ECF No. 18 at 14.) See also Beylik v.
Estep, 377 F. App’x 808, 812 (10th Cir. 2010) (decision to grant parole under SOLSA is
“wholly discretionary . . . and thus does not create a liberty interest entitled to due
process protection.”); Beebe v. Heil, 333 F. Supp. 2d 1011, 1014 (D. Colo. 2004) (an
inmate has no liberty interest in parole under Colorado’s indeterminate sentencing
scheme because the scheme vests full discretion to grant parole in the Parole Board).
Instead, Plaintiff attempts to side-step through these authorities by arguing that
he has a constitutionally protected liberty interest in receiving a proper and fair parole
hearing. (ECF No. 18 at 14.) Specifically, Plaintiff maintains that he has a liberty
interest in receiving a parole hearing and that the use of punishment considerations to
deny his parole was “tantamount to not providing a parole hearing at all.” (Compl. ¶ 82.)
Parole release decisions for sex offender inmates are not considered any
differently than release decisions for other inmates under Colorado law. See Davies,
2013 WL 5450308, at *6; (Compl. ¶ 16 (“The Parole Board Policy Manual . . . includes
the punishment consideration . . . for unrestricted use to all types of inmates.”).) Plaintiff
wholly fails to distinguish Davies on this point. Accordingly, the Court finds that
Plaintiff’s procedural due process claim also fails to state a cause of action.

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IV. CONCLUSION
Accordingly, the Court ORDERS as follows:
1. The Defendants’ Amended Motion to Dismiss (ECF NO. 17) is GRANTED,
and all of Plaintiffs’ claims are DISMISSED WITH PREJUDICE; and
2. The Clerk shall enter judgment and close the case. Each party shall bear his
or her own attorney’s fees and costs.
Dated this 24th day of February, 2014.
BY THE COURT:

__________________________
William J. Martínez
United States District Judge

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