Ippolito v. Justice Service Division et al

Filing 16

ORDER dismissing this action without prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 2/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-03480-BNB
JOSEPH C. IPPOLITO,
Plaintiff,
v.
JUSTICE SERVICE DIVISION, Court/Pretrial Services Agency,
KURT PIERPONT, Court Services Agency Manager, in his official and individual
capacities,
LESLIE HOLMES, Court Services Agency Supervisor, in her official and individual
capacities,
MELINDA ROSE, Court Services Agency/Pretrial Case Manager, in her official and
individual capacities,
INTERVENTION COMMUNITY CORRECTION SERVICES, (ICCS Facility),
CHRISTOPHER NANDREA, ICCS Out Client SVCS Manager, in his official and
individual capacities,
ASHLEA NEAL, ICCS Out Client SVCS, Manager, in her official and individual
capacities,
SHAWANA M. GREEN, ICCS Out Client SVCS Supervisor, in her official and individual
capacities,
NORCHEM DRUG TESTING LABORATORIES,
A. FISCHINGER, SC. Dir., Ph.D: Norchem Labs, in his official and individual capacities,
and
JOHN & JANE DOES, et. al X-XL 1-100,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Joseph C. Ippolito, is detained in the Jefferson County Detention Facility
in Golden, Colorado. He initiated this action by filing a Prisoner Complaint pursuant to
28 U.S.C. § 1343 and 42 U.S.C. § 1983.
Mr. Ippolito has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
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dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989).
The Court must construe the Complaint liberally because Mr. Ippolito is not
represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as
an advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the following reasons,
this action will be dismissed as legally frivolous.
Mr. Ippolito alleges in the Complaint that on March 28, 2012, while on pretrial
release in his state criminal case, he met with his case manager, Melinda Rose, who
referred Plaintiff to the Intervention Community Corrections Services (“ICCS”) facility for
monitored sobriety testing. Between April 11, 2012 and June 8, 2012, Mr. Ippolito
attended approximately 30 sobriety testing events (breathalyzers and urine testing),
which were conducted by Defendants Green, Nandrea, and Neal, as well as some of
the John and Jane Doe Defendants. Plaintiff asserts that Defendants Green, Nandrea,
and Neal disclosed the drug test results, as well as his personal information, to
Norchem Drug Testing Laboratories, Justices Service Division/Pre-Trial Services, and
agents of both entities, for review by Defendants Pierpont, Holmes, and Rose.
Defendant Rose thereafter recommended to the state criminal court that a warrant be
issued for Plaintiff’s arrest based on his non-compliance with bond conditions. Mr.
Ippolito alleges that the recommendation was authorized and approved by Defendant
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Rose’s supervisors, Defendants Pierpont and Holmes. The state court thereafter issued
a warrant for Mr. Ippolito’s arrest. Plaintiff was arrested on June 8, 2012, and his bond
was revoked. On June 14, 2012, Plaintiff posted bond and was released again pending
trial. The state court ordered Mr. Ippolito to submit to alcohol testing as a condition of
his bond. On August 20, 2012, Plaintiff was arrested for violation of the terms of his
bond based on Defendant Rose’s recommendation. He remains in custody at this time.
Mr. Ippolito asserts that Defendants Rose, Holmes, and Pierpont violated his
constitutional rights to due process and privacy because he was not provided with the
appropriate disclosure and consent forms for the release of his personal information
during the pretrial services intake procedure. Plaintiff further asserts that Defendant
Rose made false statements in her recommendation to the state court that he be
arrested and bail revoked.
Plaintiff further claims that the ICCS facility Defendants, Green, Nandrea, and
Neal, also failed to provide him with the proper disclosure and consent forms before
conducting sobriety testing and that Defendants Norchem Drug Testing Laboratories
and Dr. Fischinger failed to comply with state and federal law requirements for the
disclosure of personal information. Plaintiff also contends that the Defendants’ failure to
provide him with the disclosure and consent forms required by state and federal law
constitutes a deprivation of his Fourteenth Amendment equal protection rights. Mr.
Ippolito requests monetary relief.
Mr. Ippolito’s claim for damages for Defendants’ conduct that resulted in the
revocation of his bond and his reincarceration on criminal charges pending trial is
barred by Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held
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that no cause of action exists under 42 U.S.C. § 1983 for actions that, if proven, would
“necessarily imply” the invalidity of an underlying conviction or sentence unless that
conviction or sentence is first properly invalidated either on appeal or through habeas
corpus proceedings. Heck, 512 U.S. at 487. The Supreme Court stated: “We think the
hoary principle that civil tort actions are not appropriate vehicles for challenging the
validity of outstanding criminal judgments applies to § 1983 damages actions that
necessarily require the plaintiff to prove the unlawfulness of his conviction or
confinement . . . .” Id. at 486.
The rule in Heck is not limited to claims challenging the validity of criminal
convictions. See Edwards v. Balisok, 520 U.S. 641 (1997) (applying Heck to a § 1983
claim challenging procedures used to deprive a prison inmate of good time credits);
Hamilton v. Lyons, 74 F.3d 99, 102-03 (5th Cir.1996) (applying Heck to a § 1983 claim
challenging the coercive nature of a pretrial detainee's confinement prior to giving a
statement regarding pending charges). Because Plaintiff “would need to prove that his
detention [is] unlawful in order to receive an award of damages for that detention,” this
action is barred by Heck. Cohen v. Clemens, No. 08-1394, 321 F. App’x 739, 742 (10th
Cir. April 7, 2009) (unpublished). See also Jackson v. Thomas, No. H-08-1990, 2009
WL 1748866, at *2 (S.D. Tex. 2009) (unpublished) (plaintiff’s claim that defendants
lacked probable cause to revoke his bond based on results of urine testing imposed as
a condition of bond was barred by Heck). The Heck dismissal will be without prejudice.
See Fottler v. United States, 73 F.3d 1064, 1065 (10th Cir. 1996).
Even if the rule of Heck does not operate to preclude this action in its entirety,
Plaintiff nonetheless may not prevail against the Defendants under § 1983 for the
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following reasons.
Under Colorado law, the state court may impose, as a condition of bond,
supervision by a qualified person or organization or supervision by a pretrial services
program established pursuant to section COLO. REV. STAT. (“C.R.S.”) § 16-4-106.
See § 16-4-105(8), C.R.S. While under the supervision of a pretrial services program,
the court may require the defendant to submit to periodic alcohol or drug testing. Id. at
§ 16-4-105(8)(e), C.R.S. The pretrial services program “may provide information that
enables the court to make an appropriate decision on bond and conditions of release,
and may recommend conditions of release consistent with this section.” § 16-4-106(1),
C.R.S.
Mr. Ippolito cannot maintain his claims for damages against Defendants Rose,
Holmes, and Pierpont because those Defendants are entitled to absolute immunity from
suit. A pre-trial services case manager is entitled to absolute prosecutorial immunity for
her conduct in presenting a lab report to the state district court, with a recommendation
that the defendant’s bail bond be revoked. See Carey v. Okubo, No. 04-1516, 158 F.
App’x 962, 968 (10th Cir. Dec. 14, 2005) (unpublished). Alternatively, the pre-trial
services case manager is entitled to quasi-judicial immunity. See Loggins v. Franklin
Cnty., 218 F. App'x 466, 476 (6th Cir. 2007) (holding that a probation officer is entitled to
quasi-judicial immunity when engaged in duties to ensure that a probationer is
complying with the conditions of probation). As such, Defendants Rose and her
supervisors, Pierpont and Holmes, are not liable under 42 U.S.C. § 1983 based on
Rose’s recommendation to the state criminal court that Plaintiff’s bond be revoked
because he violated the conditions of his release.
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The Court next addresses Mr. Ippolito’s allegations that the ICCS Defendants
and the Norchem Drug Testing Laboratory Defendants failed to comply with unspecified
state and federal disclosure and consent statutes, which resulted in a violation of
Plaintiff’s constitutional right to privacy. Plaintiff does not challenge the condition of his
bond that he consent to alcohol testing. Instead, he objects only to the Defendants’
disclosure of personal information in conjunction with that testing.
The constitutional right to privacy protects an individual’s interest in avoiding
disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599–600 (1977)
(footnotes omitted). Relying on Whalen, the Court of Appeals for the Tenth Circuit held
in Mangels v. Pena, 789 F.2d 836, 839 (10th Cir.1986), that “[d]ue process thus implies
an assurance of confidentiality with respect to certain forms of personal information
possessed by the state.” The scope of personal matters protected by a right to privacy
has never been fully defined. The Supreme Court has extended the right to privacy to
“activities relating to marriage, procreation, contraception, family relationships, and child
rearing and education.” Douglas v. Dobbs, 419 F.3d 1097, 1101-02 (10th Cir. 2005)
(citing Roe v. Wade, 410 U.S. 113, 152-153, (1973) (quotations and citations omitted));
see also, Paul v. Davis, 424 U.S. 693, 713 (1976). The Tenth Circuit has held that
“there is a constitutional right to privacy that protects an individual from the disclosure of
information concerning a person's health.” Douglas, 419 F.3d at 1102 (quoting Herring
v. Keenan, 218 F.3d 1171, 1173 (10th Cir. 2000). The Tenth Circuit has also applied
the right to privacy in the contexts of an employer's search of an employee's medical
records, see Lankford v. City of Hobart, 27 F.3d 477, 479 (10th Cir.1994), a government
official's disclosure of a person's HIV status, see A.L.A. v. West Valley City, 26 F.3d 989
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(10th Cir.1994), and a government official’s disclosure of a person’s prescription
records. See Douglas, 419 F.3d at 1102. On the other hand, disclosure of criminal
activity is not afforded constitutional protection. See Nilson v. Layton City, 45 F.3d 369,
372 (10th Cir. 1995).
Information is protected by the right to privacy when a person has “a legitimate
expectation . . . that it will remain confidential while in the state's possession.” Id. See
also Anderson v. Blake, 469 F.3d 910, 914 (10th Cir. 2006). The Court finds that Mr.
Ippolito had no legitimate expectation that his personal information obtained in
connection with the collection and testing of breathalyzer and urine samples would not
be disclosed to the Defendants, or to the state court. The Defendants’ actions were
necessary to ensure Plaintiff’s compliance with a condition of his bond, the imposition of
which is authorized by Colorado statute. Mr. Ippolito does not allege that the results of
the alcohol tests, or his personal information, were reported to anyone other than the
named Defendants and the state court.
Further, Mr. Ippolito’s consent to, and participation in, the pretrial release
program diminished his expectation of privacy. As reasoned by the Sixth Circuit:
A major aim of the Pretrial Release Program is to insure that its
participants will appear at trial. To achieve that objective, the [p]rogram
subjects them to various conditions and limitations, including the
prohibition on using narcotic drugs and consuming alcoholic beverages. . .
. . . [Plaintiff’s] participation in the highly government controlled and
regulated Pretrial Release Program reduced his expectation of privacy.
Norris v. Premier Integrity Solutions, Inc., 641 F.3d 695, 699 (6th Cir. 2011) (finding no
Fourth Amendment violation resulted from “direct observation” method of drug testing
required as a condition of pretrial release).
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The Court finds that Mr. Ippolito fails to state an arguable claim for violation of his
constitutional privacy rights. Accordingly, the claims based on a violation of his
constitutional right to privacy will be dismissed as legally frivolous.
Mr. Ippolito’s equal protection claim also fails. To state an arguable equal
protection violation, Plaintiff must allege specific facts to show that he was treated
differently than similarly situated persons. See City of Cleburne, Tex. v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985); Penrod, 94 F.3d 1399, 1406 (10th Cir. 1996). In the
Complaint, Plaintiff merely makes a conclusory allegation that Defendants treated him
“differently” than others, without further explanation or clarification. This is insufficient.
Accordingly, the equal protection claim will be dismissed as legally frivolous. See
Coppinger v. Zavaras, No. 11-1107, 429 F. App’x 755 (10th Cir. July 11, 2011)
(unpublished) (affirming district court’s dismissal of equal protection claim as legally
frivolous where the plaintiff’s allegations of an equal protection violation were
conclusory). Accordingly, it is
ORDERED that the Prisoner Complaint (ECF No. 1) and the action are
DISMISSED WITHOUT PREJUDICE pursuant to the rule of Heck v. Humphrey, 520
U.S. 641 (1997), to the extent that Mr. Ippolito seeks damages based on the revocation
of his bond and his reincarceration on criminal charges pending trial. In the alternative,
this action is DISMISSED WITH PREJUDICE as legally frivolous pursuant to 28 U.S.C.
§ 1915(e)(2)(b). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438
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(1962). If Mr. Ippolito files a notice of appeal he must also pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the Tenth Circui
within thirty days in accordance with Fed. R. App. P. 24. It is
FURTHER ORDERED that all pending motions are DENIED as moot.
DATED at Denver, Colorado, this 4th day of

February

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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