Winder v. Montoya

Filing 136

ORDER granting in part and denying in part #118 Defendants Motion to Dismiss; Plaintiffs claim for monetary damages against any Defendant in his or her official capacity is DISMISSED WITHOUT PREJUDICE; Plaintiffs Fourteenth Amendment claim related to placement on restricted privileges is DISMISSED WITH PREJUDICE; Plaintiffs claim for monetary damages arising out of Defendants policies restricting visitation with family members is DISMISSED WITH PREJUDICE; and This action remains pending as to the following claims: a. Plaintiffs Fourth Amendment claims, including the Winders claim for monetary damages; b. The Fifth Amendment claims seeking declaratory and injunctive relief and which are brought by those inmates whose direct appeals are pending; c. The First and Fourteenth Amendment claims alleging violation of Plaintiffs right to familial association to the extent to such claims seek declaratory relief, by Judge William J. Martinez on 9/4/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2513-WJM-KMT
CHARLES REINHARDT, et al.,
Plaintiffs,
v.
MARCELO KOPCOW, et al.,
Defendants.

ORDER GRANTING IN PART AND DENYING IN PART THE
STATE DEFENDANTS’ MOTION TO DISMISS

This action, brought under 42 U.S.C. § 1983, relates to the state of Colorado’s
treatment of persons convicted of sex crimes. Plaintiffs, who are inmates, parolees,
and probationers of the Colorado Department of Corrections (“CDOC”) and their family
members (collectively “Plaintiffs”), allege that Defendants, who are employed by the
CDOC or are members of the Sex Offender Management Board (“SOMB”), violated
their First, Fourth, Fifth, and Fourteen Amendment rights. (Sec. Am. Compl. (“SAC”)
(ECF No. 81.) Plaintiffs seek monetary damages for the harms they have allegedly
incurred, as well as injunctive and declaratory relief. (Id.)
Before the Court is the Motion to Dismiss (“Motion”) filed by the members of the
SOMB, as well as by Rick Raemisch, in his capacity as Executive Director of CDOC,
and Rae Timme, Tori Kelly, Sheila Montoya, and Andrea Bennett-Bailey, who are all
employed by the CDOC (collectively “Defendants”). (ECF No. 118.) For the reasons
set forth below, Defendants’ Motion is granted in part and denied in part.

I. LEGAL STANDARD
Defendants bring the instant Motion pursuant to Federal Rule of Civil Procedure
12(b)(1) and (6). (ECF No. 118.)
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction
over the subject matter.” Fed. R. Civ. P. 12(b)(1). Dismissal under Rule 12(b)(1) is not
a judgment on the merits of a plaintiff’s case. Rather, it calls for a determination that
the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction
rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576,
1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and
may only exercise jurisdiction when specifically authorized to do so). The burden of
establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v.
Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction
“must dismiss the cause at any stage of the proceeding in which it becomes apparent
that jurisdiction is lacking.” See Basso, 495 F.2d at 909.
Under Rule 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 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

2

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).
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs’ Second Amended Complaint is seventy-five pages long, and contains
98 numbered paragraphs. (ECF No. 81.) In the interest of efficiency and judicial
economy, the Court will set forth below only those facts relevant to the issues raised in
the Motion.
The Plaintiffs in this case fall into three categories: (1) inmates of the Colorado
Department of Corrections who have been classified as sex offenders; (2) parolees and
probationers who are mandated to participate in sex offender treatment and therapy;
and (3) immediate family members of those inmates, parolees, and probationers. (SAC
¶ 3.) Defendants are the members of the SOMB and various employees of the CDOC
who are responsible for devising, implementing, and enforcing policies governing
inmates, parolees, and probationers who are classified as sex offenders. (Id. ¶¶ 4-11.)
The SOMB has promulgated guidelines which apply to any inmate, parolee, or
probationer that meets the SOMB’s definition of a “sex offender”. (SAC ¶ 8(b).) The
SOMB is the final policymaking authority for the State of Colorado’s policies governing
treatment and behavioral monitoring of sex offenders who are incarcerated in the

3

CDOC, on parole, or on probation. (Id. ¶ 8(c).) Amongst these policies are the
following:
•

A restriction that no sex offender may have any visitation or telephone contact
with anyone under the age of eighteen (including their own children and
grandchildren), may not have pictures of children in their cell, house or
residence, and may not discuss their children with spouses or other family
members. (Id. ¶ 9(a).)

•

A restriction that a sex offender on parole or probation may not live in his own
home if there are any children under the age of eighteen. (Id. ¶ 9(b).)

•

The requirement that all sex offenders participate in “therapy”, which requires
them to admit to or accept responsibility for all of the alleged victims’ original
allegations, even if their case is on direct appeal. (Id. ¶ 9(c).)

•

If a sex offender refuses to participate in therapy, including the requirement to
admit or accept responsibility for his alleged offenses, that offender is placed on
restricted privileges and is required to wear an orange jumpsuit, is not permitted
to talk to any family members on the telephone, has limited canteen privileges,
and has no access to the gym, television, radio, or any hobby items. (Id.)
Inmates on restricted privileges are also have their religious services limited, may
only have visitation for two hours a month, and have only one hour per week in
the exercise yard. (Id.)

•

Probationers and Parolees who are required to live in a Shared Living
Arrangement (“SLA”) may not have any visitation or telephone contact with family

4

members. (Id. ¶ 9(e).)
Additionally, Defendants have an unwritten practice of applying these policies to anyone
they deem a sex offender, even if the inmates’ conviction for a sex offense has been
vacated by the courts. (SAC ¶ 9(d).)
Plaintiffs have suffered in various ways under these policies. For example,
Plaintiff Danny Daniels Sr. is imprisoned for an assault and menacing conviction, but is
designated a sex offender based on an earlier conviction involving sex with a seventeen
year old. (SAC ¶ 23.) Mr. Daniels is married and has five children with his wife; he has
never been accused of any offense against his children. (Id.) However, because of the
challenged policies, Mr. Daniels has been denied all access to his children since 2007;
he is unable to communicate with them in any way, unable to discuss their well-being
with his wife, and unable to participate in family decisions. (Id. ¶ 24.) Mr. Daniels is
now on parole but, because of his sex offender classification, is unable to live at home
with his family, and has spent months homeless. (Id. ¶ 25.)
Plaintiff Ed Marsh was convicted of sex offenses and is designated a sexually
violent predator. (SAC ¶ 27.) He is housed at Sterling Correctional Facility, a maximum
security prison that does not offer sex offender therapy or treatment. (Id.) Despite the
lack of access to treatment, Mr. Marsh is unable to have visitation with his wife of over
25 years because Defendants assert that such visitation would interfere with his
therapy. (Id. ¶ 28.)
Plaintiff Glenn Fisher was charged with sex assault on a child, kidnapping, and
indecent exposure, but was acquitted of all charges except misdemeanor indecent

5

exposure. (SAC ¶ 44.) This misdemeanor conviction was later vacated on appeal, and
he was acquitted at his retrial. (Id.) As such, Mr. Fisher has never been convicted of a
sex offense. (Id.) However, Mr. Fisher is on probation on a misdemeanor conviction for
harassment, and Defendants have compelled him to participate in sex offender
treatment and subjected him to the challenged policies. (Id. ¶ 45.) In accordance with
the policies, Mr. Fisher was forced to move out of his home because there are children
under the age of eighteen living there. (Id.)
Plaintiff Brian Baetz is on probation after pleading guilty to attempted sexual
assault; this offense did not involve a minor. (SAC ¶ 68.) As a condition of his
probation, he is not permitted to have contact with anyone under the age of eighteen,
including his own children, despite the fact that he has joint custody and joint decision
making authority over those children. (Id.)
On these facts and many others, Plaintiffs bring claims for violations of their
First, Fourth, Fifth, and Fourteenth Amendment rights, and seek declaratory and
injunctive relief. (SAC ¶¶ 71-84.) Some Plaintiffs also bring a claim for nominal,
compensatory, and punitive damages related to violations of their First, Fourth, and
Fourteenth Amendment rights. (Id. ¶¶ 899-98.)
III. ANALYSIS
In the Motion, Defendants raise the following arguments: (1) any claim for
monetary damages brought against any Defendant in his or her official capacity is
barred by the Eleventh Amendment; (2) Plaintiffs have failed to state a claim for a
constitutional violation; (3) even if Plaintiffs have stated a claim, Defendants are entitled

6

to qualified immunity on any claim for monetary damages brought against them in their
individual capacities; (4) Plaintiffs’ claim for compensatory damages is barred by the
Prison Litigation Reform Act (“PLRA”); and (5) Plaintiffs cannot challenge the conditions
of their probation or parole because Colorado law permits the imposition of whatever
conditions are deemed appropriate for a particular offender. (ECF No. 118.) The Court
will address these issues in turn below.
A.

Eleventh Amendment Immunity
Defendants move to dismiss any claim for retrospective declaratory relief or

monetary damages brought against them in their official capacities on the grounds that
such claims are barred by the Eleventh Amendment. (ECF No. 118 at 6.) In response,
Plaintiffs state that “none of the state defendants are sued in their official capacities for
retrospective declaratory relief and money damages.” (ECF No. 130 at 6.) In fact, “[n]o
damages are sought against any defendant in his or her official capacity; and the state
defendants who are sued in their official capacity only (such as the SOMB Defendants)
are sued for prospective injunctive and declaratory relief only.” (Id.)
Given these statements, the Court agrees with Plaintiffs that Eleventh
Amendment immunity is a “non-issue”. However, the Court also agrees with
Defendants that the operative pleading is not entirely clear as to what claims are
brought against each Defendant, and in which capacity such claims are brought. Thus,
to the extent Plaintiffs bring any claim against Defendants in their official capacity for
monetary damages or retrospective declaratory or injunctive relief, such claims are
dismissed without prejudice as barred by Eleventh Amendment immunity.

7

B.

Whether Plaintiffs Have Stated a Claim for a Constitutional Violation
In the operative pleading, Plaintiffs allege violations of the following constitutional

rights: (1) their Fourteenth Amendment right to Due Process regarding the loss of
privilege; (2) their Fifth Amendment right to avoid self-incrimination; (3) their First and
Fourteenth Amendment rights to familial association; and (4) their Fourth Amendment
right to be free from unreasonable searches. (SAC ¶¶ 71-84 & 89-97.) Def endants
move to dismiss the first three of these claims on the grounds that Plaintiffs have failed
to plead sufficient facts to state a constitutional violation.1 (ECF No. 118.) The Court
will address each theory of Plaintiffs’ constitutional claims in turn below.
1.

Fourteenth Amendment Claim Regarding Privileges

As part of the sex offender treatment program, inmates are required to admit to,
and accept responsibility for, all of the alleged victims’ original allegations of harm.
(SAC ¶ 9(b).) If inmates refuse to admit the acts they are accused of committing or
violate other conditions of treatment, they are placed on restricted privileges. (SAC
¶ 9(c).) While on restricted privileges, inmates are required to wear orange jump suits,
have limited canteen privileges, have restrictions on their right to possess books, and
were unable to watch television, listen to the radio, play cards with a cellmate, or
access the gym. (Id.) Inmates on restricted privileges are also unable to talk to family
members on the phone, and only have two hours of visitation each month. (Id.)
Plaintiffs allege that their Fourteenth Amendment Due Process rights were

1

No aspect of Defendants’ Motion relates to the Fourth Amendment claim brought by
Plaintiffs Nikolas and Scott Winder. (See SAC ¶ 94.) As such, this claim survives and will
move forward to discovery.

8

violated when they were placed on restricted privileges for refusing to participate in
therapy while their direct appeals were pending. (ECF No. 130 at 14.) To state a claim
for a Due Process violation, a prisoner must show: (1) he was deprived of a protected
interest in life, liberty, or property; and (2) that he was not afforded the appropriate level
of process. Elliott v. Martinez, 675 F.3d 1241, 1244 (10th Cir. 2012).
A deprivation occasioned by prison conditions or a prison regulation does not
reach protected liberty interest status and require procedural due process protection
unless it imposes an “atypical and significant hardship on the inmate in relation to the
ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). The
Tenth Circuit has held that, where prison policy subjects all inmates who refuse to
participate in an assigned treatment program to restricted privileges status, such status
can “hardly be said to be ‘atypical’.” Gardy v. Garcia, 506 F. App’x 812, 814 (10th Cir.
2013); see also Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 809 (10th Cir. 1999)
(when determining whether prison condition imposes “atypical and significant hardship”
so as to implicate a liberty interest, the court must consider “the duration and degree of
plaintiff’s restrictions as compared with other inmates”).
In this case, Plaintiffs have not alleged any atypical hardship that arises if they
refuse to participate in treatment. Rather, the restrictions alleged are those that are
imposed on any inmate who refuses to participate in an assigned treatment program.
As such, Plaintiffs have failed to state a Fourteenth Amendment claim related to
placement on restricted privileges and such claim is dismissed.
2.

Fifth Amendment Claim

Plaintiffs also allege that the policy requiring them to admit to prior acts as part of
9

sex offender treatment violates their Fifth Amendment right to avoid self-incrimination.
(SAC ¶¶ 9(b) & 72.) This claim is only brought by those Plaintiffs whose direct appeals
are still pending. (ECF No. 130 at 11.)
The Fifth Amendment Self-Incrimination Clause provides that no person “shall be
compelled in any criminal case to be a witness against himself.” U.S. Const. Amend. V.
To state a claim for a Fifth Amendment violation, a plaintiff must show that he is truly
compelled to testify give self-incriminating testimony. United States v. Washington, 431
U.S. 181, 188 (1977). Under the Fifth Amendment, “[w]hen a witness can demonstrate
any possibility of prosecution which is more than fanciful he has demonstrated a
reasonable fear of prosecution sufficient to meet constitutional muster” which triggers
his right against self-incrimination. Steiner v. Minn. Life Ins. Co., 85 P.3d 135, 142-43
(Colo. 2004) (quoting In re Folding Carton Antitrust Lit., 609 F.2d 867, 871 (7th Cir.
1979)).
Defendants move to dismiss this claim on the grounds that Plaintiffs cannot
show that placement on restricted privileges is such a severe penalty that the
requirement to admit prior acts constitutes compulsion. (ECF No. 133 at 5.) In McKune
v. Lile, 536 U.S. 24 (2002), the Supreme Court addressed Kansas’s policy which
required inmates undergoing sex offender treatment to admit to prior acts and, upon
refusal to participate, mandated transfer to a maximum security facility with significant
privilege restrictions. The Court held that the penalties imposed on the prisoner were
not sufficiently severe so as to constitute compulsion and satisfy the Fifth Amendment
standard. Id. at 41-45, 48. The Tenth Circuit has also held that the loss of good times

10

credit was not sufficient to constitute compulsion. Searcy v. Simmons, 299 F.3d 1220,
1225 (10th Cir. 2002). Defendants rely on these cases to argue that Plaintiffs have
failed to state a Fifth Amendment claim. (ECF No. 133 at 5.)
If Plaintiffs were alleging that the only penalties they faced were the possibility of
placement on restricted privileges or the loss of good time credits, the Court would
undoubtedly agree with Defendants. However, the only Plaintiffs who are bringing this
claim are those whose direct appeals are still pending. In McKune, the fact that an
inmate had a “valid conviction” was a significant factor weighing in favor of upholding
the requirement that a sex offender admit his misdeeds. 536 U.S. at 36 (“The privilege
against self-incrimination does not terminate at the jailhouse door, but the fact of a valid
conviction and the ensuing restrictions on liberty are essential to the Fifth Amendment
analysis.”). For those inmates whose direct appeals are still pending, whether there
convictions were “valid” is an open question. Should an appeals court find an error
during a prior trial, any of these Plaintiffs may be given a new trial, at which time he
would be able to invoke his Fifth Amendment rights. The possibility of having any prior
statements made during sex offender treatment admitted during trial (or used for
impeachment), is much more significant than the penalties dealt with in McKune or
Searcy.
In People v. Guatney, 183 P.3d 620 (Colo. App. 2007), the Colorado Court of
Appeals recognized this distinction and held that the state could not rev oke an
individual’s probation based on the fact that he refused to admit prior sexual acts during
therapy so long as that individual’s direct appeal was still pending. The court noted that
the consequence of “not asserting the [Fifth Amendment] privilege and making the
11

admission is the probability that the admission would be allowed into evidence on retrial
if the direct appeal is successful. Such a consequence would be daunting for a guilty
person, horrific for an innocent one.” Id. at 623. The Court finds that this same
consequence applies here to those Plaintiffs whose direct appeals are pending. Should
they choose to participate in sex offender treatment, they may be compelled to make
incriminating statements that could be used against them during a retrial. The Court
finds that this potential penalty is so severe as to constitute compulsion and state a
claim for a Fifth Amendment violation.
Accordingly, Defendants’ Motion is denied as to Plaintiffs’ Fifth Amendment
claim for declaratory and injunctive relief.2
3.

Rights to Familial Association

Plaintiffs contend that Defendants’ policies restricting sex offenders—both
imprisoned and on probation—from having contact with their family members,
particularly their children, violate their First and Fourteenth Amendment rights.
The Supreme Court has held that “parents have a liberty interest, protected by
the Constitution, in having a reasonable opportunity to develop close relations with their
children.” Hodgson v. Minnesota, 497 U.S. 417, 483 (1990); see also Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989) (stating that “[a]ccess [to prisons] is essential . . . to
families and friends of prisoners who seek to sustain relationships with them”).
However, it is also well accepted that “[t]he very object of imprisonment is confinement,”
and “[m]any of the liberties and privileges enjoyed by other citizens must be

2

The Court notes that Plaintiffs do not seek monetary damages on their Fifth
Amendment claim. (SAC pp. 62 & 69.)

12

surrendered by the prisoner.” Overton v. Bazzetta, 539 U.S. 126, 131 (2003).
“Prisoners do not retain rights inconsistent with proper incarceration, and ‘freedom of
association is among the rights least compatible with incarceration.’” Wirsching v.
Colorado, 360 F.3d 1191, 1198 (10th Cir. 2004) (quoting Overton, 539 U.S. at 131).
A court considering a prison’s restrictions on access to family members must
“balance the guarantees of the Constitution with the legitimate concerns of prison
administrators.” Beerheide v. Suthers, 296 F.3d 1179, 1184 (10th Cir. 2002). W hen
considering this issue on a motion for summary judgment, the Court must consider the
four factors set forth in Turner v. Safley, 482 U.S. 78 (1987). See Al-Owhali v. Holder,
687 F.3d 1236, 1240 (10th Cir. 2012). However, on a motion to dismiss, the Court
need only “assess, as a general matter, whether a prison regulation is ‘reasonably
related to a legitimate penological interest.’” Id. Thus, to state a cognizable claim
Plaintiffs must plead facts from which a plausible inference can be drawn that the action
was not reasonably related to a legitimate penological interest. Gee v. Pacheco, 627
F.3d 1178, 1188 (10th Cir. 2010).
Plaintiffs allege that Defendants have implemented a “blanket one-sized fits all”
policy that does not permit any inmate, probationer, or parolee classified as a sex
offender to: (1) have visitation or telephone contact with anyone under the age of
eighteen, including their own children; (2) have pictures of any children in their cell,
house, or place of residence; or (3) discuss the welfare of their own children or
grandchildren with their spouses or other family members. (SAC ¶ 9(a).) This policy
applies to all sex offenders, regardless of whether their crime had anything to do with

13

children. (Id.) Plaintiffs also allege that Defendants have an unwritten practice of
applying this policy to inmates who were originally convicted of a sex offense, even
after those sex offense convictions have been vacated by the courts. (SAC ¶ 9(d).)
Defendants contend that their policies are related to a leg itimate penological
interest, and that Plaintiffs cannot plead sufficient facts to show otherwise. (ECF No.
118 at 7.) In support of this argument, Defendants cite Overton v. Bazzetta, 539 U.S.
126 (2003), and Wirsching v. Colorado, 360 F.3d 1191 (10th Cir. 2004).
In Overton, the Supreme Court upheld a policy that restricted inmates’ ability to
visit with minors who were not their children, stepchildren, or grandchildren. 539 U.S. at
130. The Court noted that “freedom of association is among the rights least compatible
with incarceration”, and that “[s]ome curtailment of that freedom must be expected in
the prison context.” Id. at 131. However, the Court also stated:
We do not hold, and we do not imply, that any right to
intimate association is altogether terminated by incarceration
or is always irrelevant to claims made by prisoners. We
need not attempt to explore or define the asserted right of
association at any length or determine the extent to which it
survives incarceration because the challenged regulations
bear a rational relation to legitimate penological interests.
Id. at 131-32. Significantly, the Supreme Court noted that the challenged policy in
Overton allowed visits between an inmate and those children closest to him or her,
including children, grandchildren, and siblings. Id. at 133.
In Wirsching, the Tenth Circuit considered the State of Colorado’s restrictions on
minor children visiting an inmate convicted of a sex offense against a child, and held
that these restrictions were related to a legitimate penological interest. 360 F.3d at

14

1201. The Tenth Circuit noted that Colorado’s restrictions were “significantly more
severe than the ban on family visits upheld in Overton”, but held that Colorado had
offered evidence of penological interests that were furthered by its policy, and that
Plaintiff had failed to rebut that evidence. Id.
Two points are notable about the Wirsching decision. First, Mr. Wirsching was
convicted of a sexual offense involving a child. In contrast, none of the sex offenses
committed by the Plaintiffs in this case involved their own children, and most did not
involve children at all. Second, Mr. Wirsching was pro se for the entire time his case
was pending in the district court. The Tenth Circuit appointed counsel to pursue to his
appeal, but appellate counsel could not chang e the factual record. In upholding the
regulation, the Tenth Circuit noted that “[h]ad Mr. W irsching offered evidence as to the
feasibility and minimum institutional effect of a less restrictive visitation policy, this
would be a closer case.” Id. at 1201. In this case, Plaintiffs are represented by
counsel, and the Court finds that they should have the opportunity to develop the record
and attempt to make a stronger showing than Mr. Wirsching was able to make on his
own.
The Court finds that the factual allegations in Plaintiffs’ Second Amended
Complaint are sufficient to permit the Court to infer that the challenged policies are not
rationally related to a legitimate penological interest. In Wirsching, the Tenth Circuit
stated: “Prison officials should be careful to ensure that restrictions upon visitation with
a prisoner’s children are justified by the circumstances, and they should seriously
consider less draconian restrictions—such as closely monitored, noncontact visitation.”

15

Id. As Plaintiffs in this case were not convicted of a sex offense involving children—and
some of them have not been convicted of a sex offense at all—the Court finds that they
should be permitted to proceed to discovery to attempt to show that the severe
restrictions imposed on their contact with their children violate their constitutional rights.
The Court finds that Plaintiffs have met their burden to survive a motion to dismiss, and
that the scope of the regulations are more appropriately considered on summary
judgment. See also Brothers v. Lawrence Cty. Prison Bd., 2008 WL 146828, at *5
(W.D. Pa. Jan. 14, 2008) (stating that whether a prison regulation is rationally related to
a legitimate penological interest is a complex, multi-factor inquiry which does not lend
itself to resolution on a motion to dismiss).
Accordingly, the Court finds that Plaintiffs have stated a claim for a First and
Fourteenth Amendment violation arising out of the restrictions imposed on their ability
to associate with family members. Defendants’ Motion is denied to the extent it seeks
dismissal of the declaratory and injunctive relief sought on this claim. With regard to
the claim for monetary damages, the Court must next consider Defendants’ assertion of
qualified immunity. (ECF No. 118 at 14.)
C.

Qualified Immunity
“The doctrine of qualified immunity protects government officials 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.” Pearson v.
Callahan, 555 U.S. 223 (2009) (quotation omitted). To resolve qualified immunity
claims, a court must consider two elements: (1) whether a constitutional violation

16

occurred, and (2) whether the violated right was “clearly established” at the time of the
violation. Id. at 230-31. The Court may “exercise [its] sound discretion in deciding
which of the two prongs of the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at hand.” Id. at 236. “Qualified
immunity is applicable unless the plaintiff can satisfy both prongs of the inquiry.”
Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir. 2009).
The Court has already found that Plaintiffs have stated a claim for a
constitutional violation arising out of the restrictions on family visitation. However, in
order for Plaintiffs to be permitted to recover monetary damages, the alleged
constitutional violation must be clearly established. Pearson, 555 U.S. at 231. “[T]he
relevant, dispositive inquiry in determining whether a right is clearly established is
whether it would be clear to a reasonable officer that his conduct was unlawful under
the circumstances presented.” Fogarty v. Gallegos, 523 F.3d 1147, 1155 (10th Cir.
2008). Generally, this requires “a Supreme Court or Tenth Circuit decision on point, or
the clearly established weight of authority from other courts must have found the law to
be as the plaintiff maintains.” Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150,
1155 (10th Cir. 2010) (quotation omitted).
Under Tenth Circuit law, Defendants would not have been on fair notice that their
actions could result in liability. While the facts of this case are distinguishable from
Wirsching, they are similar enough that a reasonable person in Defendants’ position
would not have known that their actions violated Plaintiffs’ constitutional rights.
Plaintiffs have failed to cite any case in which a court has found restrictions on who can

17

visit an inmate that has been classified as a sex offender to be unconstitutional, instead
relying on general statements regarding the right to family association. (See ECF No.
130 at 9-11, 15-16.) This failure is fatal to Plaintiffs’ claim for monetary damages. See
Green v. Post, 574 F.3d 1294, 1300 (10th Cir. 2009) (qualified immunity places the
burden on the plaintiff to show that the constitutional right was clearly established at the
time of the alleged violation).
Accordingly, the Courts finds that Defendants enjoy qualified immunity from
liability for any civil damages, and as a result Defendants’ Motion is granted as to
Plaintiffs’ claim for monetary damages related to the prison visitation policies.
D.

Prison Litigation Reform Act
Defendants move to dismiss any claim for monetary damages sought by

Plaintiffs who are currently incarcerated pursuant to the PLRA. (ECF No. 118 at 14.)
The PLRA states, in pertinent part, “no Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or emotional
injury suffered while in custody without a prior showing of physical injury.” 42 U.S.C. §
1997e(e). Defendants contend that no Plaintiff suffered a physical injury as a result of
their policies and, therefore, cannot recover any damages for a mental or emotional
injury. (ECF No. 118 at 14.) In response, Plaintiffs admit that they cannot seek
compensatory damages, but contend that their claims for nominal and punitive
damages are not affected by the PLRA. (ECF No. 130 at 15.)
The Court finds that this issue is moot given the Court’s ruling that Defendants
are entitled to qualified immunity from Plaintiffs’ claims for monetary damages. Punitive

18

damages and nominal damages are monetary damages to which qualified immunity
applies. See Sandlin v. Garcia, 2011 WL 1336286, *7 (D. Colo. March 10, 2011)
(“Having found that Defendants are entitled to qualified immunity from liability, the Court
need not address whether Plaintiff has failed to state a claim for punitive damages.”).
E.

Rights of Parolees and Probationers
Though not directed towards a particular claim or constitutional violation,

Defendants generally move to dismiss all claims brought by parolees and probationers
on the grounds that Colorado law permits Defendants to impose any condition that they
deem appropriate. (ECF No. 118 at 11-12.) W hile the Court takes no issue with
Defendants’ recitation of the statutes, the Court does not agree that the ability to
impose any restriction deemed necessary on a parolee or probationer means that these
claims must be dismissed. All of the restrictions placed on a parolee or probationer are
still subject to review to ensure that they fall within the bounds of the Constitution. The
Colorado legislature cannot by statute bestow on Defendants the right to impose
restrictive policies or restraints which this Court finds to be in violation of the U.S.
Constitution. Indeed, there are many cases in which courts have considered the
constitutionality of various restrictions placed on parolees and probationers. See, e.g.,
Guatney, 183 P.3d at 625 (considering whether state could impose a probation
condition that required the offender to participate in sex offender treatment while his
direct appeal was pending); Schwartz v. N.M. Corrs. Dep’t, 384 F. App’x 726, 732 (10th
Cir. 2010) (reviewing the constitutionality of various conditions imposed on a
probationer). Thus, the Court finds that Defendants have failed to show that Plaintiffs

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are unable to bring their claims related to conditions of parol or probation.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Defendants’ Motion to Dismiss (ECF No. 118) is GRANTED IN PART and
DENIED IN PART;

2.

Plaintiffs’ claim for monetary damages against any Defendant in his or her official
capacity is DISMISSED WITHOUT PREJUDICE;

3.

Plaintiffs’ Fourteenth Amendment claim related to placement on restricted
privileges is DISMISSED WITH PREJUDICE;

4.

Plaintiffs’ claim for monetary damages arising out of Defendants’ policies
restricting visitation with family members is DISMISSED WITH PREJUDICE; and

5.

This action remains pending as to the following claims:
a.

Plaintiffs’ Fourth Amendment claims, including the Winders’ claim for
monetary damages;

b.

The Fifth Amendment claims seeking declaratory and injunctive relief and
which are brought by those inmates whose direct appeals are pending;

c.

The First and Fourteenth Amendment claims alleging violation of Plaintiffs’
right to familial association to the extent to such claims seek declaratory
relief.

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Dated this 4th day of September, 2014.
BY THE COURT:

William J. Martínez
United States District Judge

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