Shields v. Duncan et al
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE re granting in part and denying in part 204 MOTION to Dismiss filed by Shefali Phillips, John Odenheimer, Jeff Geist, Marjorie Lewis, William Hildebrand, Jennifer Duncan, Tom Lever see, Carl Blake, Doug Stephens, Rick Raemisch, Theresa (I) Dawes, Brandon Shaffer, Denise Balazic, Jennifer (I) Duncan, Mimi Scheuermann, Nancy Johnson, Cheryl Davies, Amy Fitch, Jessica Meza, Rebecca Oakes, Richard Bednarski, Angel We ant, Mary Baydarian, Peggy Heil, Marcelo Kopcow, A. Mervyn Davies, Erin Jemison, Jennifer Curtis, Theresa Dawes, Allison Boyd, Jeff Jenks, Missy Gursky, Alfredo Pena, Amy Tate, Dianna Lwyer-Brook, by Magistrate Judge Michael E. Hegarty on 2/06/2017. (slibi, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02231-RM-MEH
WESLEY SPECHT, and
JENNIFER DUNCAN, in her individual capacity as Jonathan Shields’ parole officer,
THERESA DAWES, in her individual capacity as Steven Christiansen’s parole officer,
SHEFALI PHILLIPS, in her official capacity as Eric Petersen’s parole officer,
RICK RAEMICSH, in an official capacity as Executive Director of the Colorado DOC,
MARCELO KOPCOW, in an official capacity as SOMB Board Member,
ERIN JEMISON, in an official capacity as SOMB Board Chair,
MARY BAYDARIAN, in an official capacity as SOMB Board Member,
CARL BLAKE, in an official capacity as SOMB Board Member,
ALLISON BOYD, in an official capacity as SOMB Board Member,
A. MERVYN DAVIES, in an official capacity as SOMB Board Member,
CHERYL DAVIES, in an official capacity as SOMB Board Member,
JESSICA CURTIS, in an official capacity as SOMB Board Member,
AMY FITCH, in an official capacity as SOMB Board Member,
JEFF GEIST, in an official capacity as SOMB Board Member,
MISSY GURSKY, in an official capacity as SOMB Board Member,
PEGGY HEIL, in an official capacity as SOMB Board Member,
WILLIAM HILDEBRAND, in an official capacity as SOMB Board Member,
NANCY JOHNSON, in an official capacity as SOMB Board Member,
JEFF JENKS, in an official capacity as SOMB Board Member,
DIANNA LWYER-BROOK, in an official capacity as SOMB Board Member,
TOM LEVERSEE, in an official capacity as SOMB Board Member,
RICHARD BEDNARSKI, in an official capacity as SOMB Board Member,
JOHN ODENHEIMER, in an official capacity as SOMB Board Member,
JESSICA MEZA, in an official capacity as SOMB Board Member,
ANGEL WEANT, in an official capacity as SOMB Board Member,
MIMI SCHEUERMANN, in an official capacity as SOMB Board Member,
DOUG STEPHENS, in an official capacity as SOMB Board Member,
BRANDON SHAFFER, in an official capacity as Colorado Parole Board Member,
REBECCA OAKES, in an official capacity as Colorado Parole Board Member,
DENISE BALAZIC, in an official capacity as Colorado Parole Board Member,
ALFREDO PENA, in an official capacity as Colorado Parole Board Member, and
MARJORIE LEWIS, in an official capacity as Colorado Parole Board Member,
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Michael E. Hegarty, United States Magistrate Judge.
Before the Court is the Defendants’ renewed Motion to Dismiss [filed October 31, 2016;
ECF No. 204]. Pursuant to 28 U.S.C. § 636(b)(1)(B) and D.C. Colo. LCivR 72.1(c), the motion has
been referred to this Court for recommendation. The motion is fully briefed, and the Court finds that
oral argument would not materially assist in the adjudication of the matters. For the reasons that
follow, this Court respectfully recommends that Defendants’ Motion be granted in part and denied
Plaintiffs (above-captioned) assert that the State of Colorado’s Sex Offender Management
Board’s (“SOMB”) treatment of sex offenders (incarcerated, paroled or discharged from parole)
violates the Plaintiffs’ constitutional rights to familial association. Plaintiffs, who are self-described
“sex offenders” or family of the same, allege that the SOMB applies a blanket prohibition against
any sex offender having any contact with a “victim” or anyone under the age of 18 (even the sex
offender’s own children and grandchildren), and precludes indirect or third-party contact (so the sex
Be advised that all parties shall have fourteen (14) days after service hereof to serve and
file any written objections in order to obtain reconsideration by the District Judge to whom this
case is assigned. Fed. R. Civ. P. 72. The party filing objections must specifically identify those
findings or recommendations to which the objections are being made. The District Court need
not consider frivolous, conclusive or general objections. A party’s failure to file such written
objections to proposed findings and recommendations contained in this report may bar the party
from a de novo determination by the District Judge of the proposed findings and
recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. §
636(b)(1). Additionally, the failure to file written objections to the proposed findings and
recommendations within fourteen (14) days after being served with a copy may bar the
aggrieved party from appealing the factual and legal findings of the Magistrate Judge that are
accepted or adopted by the District Court. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir.
2008) (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991)).
offender is not allowed to talk to his spouse or adult children about his children or grandchildren).
On October 23, 2015, this Court issued a recommendation that the Honorable Raymond P.
Moore grant the Defendants’ motion to dismiss the operative Third Amended Complaint (“TAC”).
ECF No. 162. In that recommendation, this Court set forth the background of the case. Id. Then,
in Judge Moore’s October 13, 2016 order adopting in part and rejecting in part the recommendation,
the judge described a comprehensive, updated background and procedural history of the case. ECF
No. 201. Accordingly, the Court need not repeat that information here.
Since Judge Moore’s order, the Plaintiff filed a Notice of Voluntary Dismissal of Plaintiffs
Kerns, Spitz, and Cooley and Defendants Sage and Tate. ECF No. 216. Accordingly, this Court has
modified the case caption and will proceed to determine the claims and defenses of the remaining
parties as set forth in the motion and attendant briefing.
Statement of Facts
The following are factual allegations (as opposed to legal conclusions, bare assertions, or
merely conclusory allegations) made by the Plaintiffs in the TAC.2 See TAC, ECF No. 102. The
Court will address each Plaintiff in turn.
Plaintiff Shields was a juvenile offender charged as an adult with sex offenses and other
felonies in Adams County, Colorado, in 2002. TAC ¶ 18. Shields was a developmentally disabled
child who experienced brain damage while riding his bicycle in 2001; the next year, when
babysitting his younger cousins and after having been given marijuana by his cousins’ father, he was
accused of having sexually abused his cousins. Id. ¶19. He pled guilty to Fourth Class Felony Sex
Assault against a Child and a misdemeanor sex offense in exchange for a deferred sentence. Id. ¶
The Court here provides only broad facts related to the Motion as the TAC includes 51
pages of facts. See TAC, docket #102 at 5-56.
20. He failed to successfully complete the deferred judgment so was sentenced to two years to life
in the DOC in 2012. Id. Shields was paroled in 2012 after successfully completing sex offender
treatment. Id. ¶ 21. Defendant Jennifer Duncan was assigned to be Shields’ parole officer. Id. ¶
22. Shields used his brother’s cell phone to send a text, and that cell phone contained a history of
having viewed websites that could be considered pornographic. Id. Use of that cell phone along
with contact with a family friend who, unbeknownst to Shields, had a felony record led to Duncan’s
request to rescind his parole, but the request was denied. Id.
Shields then again entered sex offender treatment, but the treatment provider terminated him
because he could not pay for the service, so Shields was arrested and charged with parole violations.
Id. ¶¶ 23–24. His parole was then revoked in March 2014 and he returned to the DOC. Id. ¶ 25.
He was released from the DOC on July 29, 2014 without any clothes, money, identification or
transportation and was expected to fend for himself. Id. ¶ 27. Duncan told him he was not permitted
to go anywhere except the parole office, his sex offender treatment office, the place where he
provided urine samples, and the office where his ankle monitor was installed. Id. ¶ 29. In addition,
Duncan ordered Shields to live in a room at the Carriage Inn, “a dive motel, in an extremely
dangerous neighborhood” where he “was covered in bed bug bites” and experienced other squalid
conditions. Id. ¶ 28. He was also not allowed to have contact with his parents. Id. ¶ 29. Duncan’s
and the parole board’s position was that the SOMB standards require that these restrictions be placed
on Shields. Id. ¶ 30. After the filing of this lawsuit, Duncan removed the restriction that Shields
could not have contact with his parents. Id.
Plaintiff Christiansen was charged with various sex offenses that allegedly occurred in May
1998. TAC ¶ 33. On June 8, 2004, Christiansen was sentenced to a single count of Fourth Class
Felony Sex Assault on a Child. Id. He completed his sentence at the DOC and his mandatory
parole, but was required to continue to register as a sex offender. Id. ¶¶ 33–34. He has been accused
several times of failing to register and, in December 2013, was sentenced to nine months in the DOC
after pleading guilty to this charge in Adams County. Id. ¶ 34. At the time, Christiansen had a tenweek-old child, but there is no allegation he committed sexually inappropriate conduct against her
or anyone else since the 1998 allegations. Id.
Upon his parole, Christiansen was not allowed to have contact with any person under the age
of 18, including his own child, based on SOMB guidelines. Id. Defendant Theresa Dawes served
as Christiansen’s parole officer and directed that he was prohibited from living with his wife and
daughter. Id. Christiansen thus was directed by Dawes to live in a Motel 9, “another dive motel in
an extremely dangerous neighborhood on East Colfax in a room that is infested with rodents and
other vermin,” where he experienced uninhabitable conditions. Id. ¶ 42. Because of his sexoffender designation, the parole board and Dawes used SOMB standards to prohibit Christiansen
from having any verbal or physical contact with his daughter. Id. ¶ 44.
Plaintiff Petersen was convicted of sex assault on a child and sentenced to two years to life
in the DOC in April 2003 for a 1999 offense of kissing and fondling the breast of his roommate’s
14-year-old babysitter in Arapahoe County, Colorado. Id. ¶ 61. He had volunteered to drive the
babysitter home, during which time he allegedly committed the criminal act. Id. He received a
deferred sentence of four years probation for Sexual Assault on a Child and 12 years probation for
Second Degree Kidnapping, with sentences running concurrently. Id. While on probation, Petersen
moved in with a woman who had a minor child, resulting in Petersen’s arrest and loss of his deferred
judgment. Id. ¶ 62. The woman was, at the time, already pregnant with Petersen’s daughter. Id.
He was resentenced in April 2003 to two years to life in the DOC. Id. His daughter was born in
May 2003 while he was in prison, and he has not been allowed to meet her. Id.
While incarcerated in the DOC, Petersen completed sex offender treatment and participated
in treatment for four of the seven years he was incarcerated. Id. ¶ 63. He did not pass required
polygraph examinations as required by the SOMB, so he was terminated from DOC treatment. Id.
He also has failed 12 polygraph examinations while on parole. Id. ¶ 69. His parole officer,
Defendant Shefali Phillips, determined that SOMB regulations would require Petersen to be placed
in community corrections and have his liberty restricted if he continued to fail these polygraph
examinations. Id. ¶ 70. When he was paroled, he was allowed to have four pictures of his daughter
but no other contact. Id. ¶ 64. He also was prohibited from contact with his six nieces and nephews.
Id. ¶ 65.
Wesley Specht and Jessica Specht
Plaintiff Specht was a coach at a Jefferson County high school when charged with sex assault
on a child by one in a position of trust and other related offenses for allegedly having sexual contact
with three teenaged girls at the high school. TAC ¶ 71. A jury convicted him of one count of sexual
assault on a child by one in a position of trust on a victim who was 17-years-old at the time and
“always claimed that the relationship was consensual.” Id. He was sentenced in July 2012 to 12
years to life in DOC. Id. Specht’s conviction is currently on direct appeal. Id.
Specht married his victim, Plaintiff Jessica Specht, when she was 19-years-old via a proxy
marriage in which neither was in the presence of the other. Id. ¶ 72. The DOC has denied Mr.
Specht all visitation with his wife and anyone under the age of 18 (id. ¶ 74) based on the SOMB
policy that “sex offenders may never have any contact with anyone designated as a ‘victim’ of
sexual assault by the offender or contact with anyone who is under the age of 18.” Id. ¶ 75. On
March 19-20, 2015, a Specht family friend, Jessica Zanghi, personally talked to Warden Miller at
the Crowley County Correctional Facility who told her that Mr. Specht would never be permitted
to have visitation with his wife or anyone under the age of 18. Id. ¶ 74. Mr. Specht has never been
accused of any other sexual impropriety or crime and has never been accused of harming any
children other than the children in Jefferson County case number 2011CR965. Id. ¶ 76.
Plaintiffs assert two causes of action against the State Defendants3: (1) declaratory and
injunctive relief pursuant to 42 U.S.C. § 1983 for violations of the First and Fourteenth Amendments
to the U.S. Constitution for denying rights to familial association; and (2) nominal, compensatory
and punitive damages pursuant to 42 U.S.C. § 1983 for violations of the Eighth and Fourteenth
Amendments to the U.S. Constitution against the Defendants sued in their personal capacities. TAC,
docket #102 at 56, 62. Plaintiffs confirm in their response brief that the First Claim is brought by
Plaintiffs Petersen and the Spechts against the Defendants in their official capacities, and the Second
Claim is brought by Plaintiffs Shields and Christiansen against Defendants Duncan and Dawes in
their individual capacities. Resp. 1–3.
In his October 13, 2016 order, Judge Moore rejected this Court’s recommendation that
Plaintiffs’ claims be dismissed for this Court’s lack of subject matter jurisdiction pursuant to the
Younger doctrine and denied the Defendants’ motion without prejudice . ECF No. 201. On October
31, 2016, the Defendants filed the present renewed motion arguing Plaintiff Petersen’s First
Amendment claim is barred by the statute of limitations; the familial association claims fail to state
claims for relief; to the extent Plaintiffs seek declaratory and injunctive relief that is not ripe, the
claims fail; and Plaintiffs Shields’ and Christensen’s Eighth Amendment claims fail to state
plausible claims for relief.4
Judge Moore noted in his order that the TAC’s Third and Fourth Claims had been
dismissed. ECF No. 201 at 4 n.5.
Defendants bring their motion pursuant to both Fed. R. Civ. P. 12(b)(1) and 12(b)(6);
however, the Court finds Rule 12(b)(1) does not apply for an analysis of the Defendants’
Plaintiffs counter that Petersen’s claim has not yet accrued because the alleged ongoing
conduct has not yet ceased or, alternatively, the claim accrued in August 2014, and, thus, the statute
of limitations does not bar his claim; under the governing law, the Plaintiffs’ familial association
claims cannot be resolved in a 12(b)(6) analysis; and, Plaintiffs plausibly state Eighth Amendment
claims for deliberate indifference by the individual Defendants.
Defendants reply repeating most of the original arguments and contending Plaintiffs’
attempts to add “new” facts in their brief is improper.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to
dismiss, means that the plaintiff pled facts which allow “the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. Twombly requires a two prong analysis.
First, a court must identify “the allegations in the complaint that are not entitled to the assumption
of truth,” that is, those allegations which are legal conclusions, bare assertions, or merely
conclusory. Id. at 678-80. Second, the Court must consider the factual allegations “to determine
if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible
claim for relief, such claim survives the motion to dismiss. Id. at 680.
Plausibility refers “to the scope of the allegations in a complaint: if they are so general that
they encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged
their claims across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d
1188, 1191 (10th Cir. 2012) (quoting Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008)). “The
nature and specificity of the allegations required to state a plausible claim will vary based on
context.” Kan. Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011). Thus, while
the Rule 12(b)(6) standard does not require that a plaintiff establish a prima facie case in a
complaint, the elements of each alleged cause of action may help to determine whether the plaintiff
has set forth a plausible claim. Khalik, 671 F.3d at 1191.
The adequacy of pleadings is governed by Federal Civil Procedure Rule 8(a)(2), which
requires that a complaint contain “a short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This rule “requires more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555 (internal
citations omitted). Determining whether the allegations in a complaint are “plausible” is a
“context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Iqbal, 556 U.S. at 679. If the “well pleaded facts do not permit the court to infer
more than the mere possibility of misconduct,” the complaint should be dismissed for failing to
“show[ ] that the pleader is entitled to relief” as required by Rule 8(a)(2). Id.
As set forth above, the Defendants raise the following arguments in support of their request
to dismiss the TAC: (1) Petersen’s First Amendment claim is barred by the statute of limitations;
(2) the Plaintiffs’ First Claim fails to state plausible claims for relief; (3) Shields’ claim for
injunctive relief is not ripe; and (4) Plaintiffs Shields’ and Christiansen’s Second Claim fails to state
plausible claims for relief. The first three arguments address the Plaintiffs’ First Claim against the
official-capacity Defendants, and the fourth argument addresses the Second Claim against the
individual-capacity Defendants. The Court will address each argument in turn.
Statute of Limitations
“Limitations periods in § 1983 suits are to be determined by reference to the appropriate state
statute of limitations and the coordinate tolling rules ....” Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006) (quoting Hardin v. Straub, 490 U.S. 536, 539 (1989)) (quotations omitted). The
limitations period applicable to this § 1983 suit is Colorado’s two-year statute of limitations which
bars suits filed more than two years after the time the cause of action accrued. Id. (citing Blake v.
Dickason, 997 F.2d 749, 750–51 (10th Cir. 1993)); see also Colo. Rev. Stat. § 13–80–102. “A §
1983 action ‘accrues when facts that would support a cause of action are or should be apparent.’”
Id. (quoting Fratus v. DeLand, 49 F.3d 673, 674–75 (10th Cir. 1995)). Dismissal under Fed. R. Civ.
P. 12(b)(6) is proper when a complaint indicates on its face that the statute of limitations has
expired. Aldrich v. McCullouch Props., Inc., 627 F.2d 1036, 1041 n.4 (10th Cir. 1980).
Here, Defendants contend that Petersen’s First Amendment claim, originally filed in August
2014, is barred because, “[t]hrough his allegations, Petersen acknowledges that this challenged
restriction [from contact with his minor daughter] has been in place since he paroled in July 2010.”
Mot. 4–5. Petersen counters that the alleged violation has been “ongoing” since he paroled and,
thus, his cause of action has not yet accrued or, alternatively, the claim accrued in August 2014
when an approved safety plan by which Petersen was to have supervised contact with his daughter
was revoked “because he [could] not pass the polygraph examination that he has not had any contact
with his daughter.” Defendants reply that “August 2014 safety plan” allegations do not appear in
the operative pleading and cannot be added by a response brief, and the Tenth Circuit has not
recognized a continuing violation theory for § 1983 cases.
A review of the operative TAC reveals that the “August 2014 safety plan” allegations, in
fact, are not included in the pleading. In the response brief to the present motion, Petersen cites to
his declaration that accompanied the November 16, 2014 Motion for Preliminary Injunction (denied
by Judge Moore May 22, 2015) apparently to demonstrate notice to the Defendants of such
allegations. See Decl. of Eric Petersen ¶ 4, ECF No. 29-3. However, the declaration was neither
attached to, nor referenced in, the TAC, nor to the Amended Complaint that was operative at the
time. See Am. Compl., ECF No. 27; see also GFF Corp. v. Associated Wholesale Grocers, 130 F.3d
1381, 1384 (10th Cir. 1997) (courts may consider outside documents that are both central to the
plaintiff’s claims and to which the plaintiff refers in his complaint). Consequently, Petersen cannot
rely on the “August 2014 safety plan” allegations to demonstrate he is entitled to relief under Fed.
R. Civ. P. 8(a)(2).
As for Petersen’s continuing violation theory, the Tenth Circuit has “never formally adopted
the continuing violation doctrine for § 1983 actions.” Gosselin v. Kaufman, 656 F. App’x 916, 919
(10th Cir. July 19, 2016). However, the Tenth Circuit has “concluded that assuming the continuing
violation doctrine applies to § 1983 claims, the doctrine is triggered by continual unlawful acts, not
by continual ill effects from the original violation.” Mata v. Anderson, 635 F.3d 1250, 1253 (10th
Cir. 2011) (citations and internal quotation marks omitted).
Petersen’s allegations concerning his lack of contact with his daughter since parole include:
. While on probation, Mr. Petersen met Jenny Salzman in February 2002 and
moved in with her in Spring of 2002. In August 2002, Mr. Petersen was arrested and
lost his deferred judgment for . . . being in denial in regards to offense of record, and
entering into a relationship with Jenny Salzman who had a minor child at that time.
However, by this time, Ms. Salzman was pregnant with Mr. Petersen’s daughter L.P.
On April 21, 2003, Mr. Petersen was resentenced to two years to life in the DOC.
[His] daughter was born on May 31, 2003 while he was in prison and he has never
even been allowed to meet her, much less parent her or even talk to her.
While incarcerated at the DOC, Mr. Petersen completed SOTMP (sex
offender) treatment, and participated in treatment for a total of four years of the
seven years while incarcerated. However, he had problems passing the required
polygraph examinations required by the SOMB and was terminated from treatment
in the DOC as a result. He filed a federal lawsuit, Petersen v. Dunlap,
08-cv-00668-ZLW-KMT to address the constitutionality of being terminated
specifically from treatment because of failed polygraphs, along with other claims.
The case became moot when Mr. Petersen was paroled on July 1, 2010 and was
enrolled in sex offender treatment in the community.
When Mr. Petersen was paroled, he was allowed to have four pictures of his
daughter, which he still has. This is the only “contact” with his daughter that the
parole board and his parole officer have ever permitted. L.P. has Asperger’s
syndrome and it has been very difficult for Ms. Salzman to raise L.P. as a single
parent; she is in favor of Mr. Petersen being able to participate in L.P.’s life and
share in the parenting duties. All Mr. Petersen can do to support Ms. Salzman and
L.P. is to pay child support, which he has done ever since he was paroled.
Mr. Petersen continues to have difficulty passing polygraph examinations.
He has failed twelve polygraphs while on parole, and the only polygraph
examination he ever passed was an issue specific polygraph examination he took
when he returned from Idaho for his grandmother’s funeral. He was asked whether
he had any contact with minors while on this furlough, and the polygraph test results
were non deceptive. In the twelve polygraph examinations he has failed, the
polygrapher alleges that he produced deceptive results when asked whether he has
had contact with his daughter, or has had sexual contact with minors. He has engaged
in neither behavior since his incarceration in 2003 and has never met his daughter or
spoken to her on the telephone.
TAC, ECF No. 102. These allegations fail to identify any discrete act taken by the Defendants,
except that they have denied him the ability to see his daughter upon his parole in July 2010.
Although Petersen alleges he has “failed twelve polygraphs while on parole,” he does not link the
polygraph tests to the Defendants’ affirmative refusal to permit him to associate with his daughter
or other minor children;5 rather, the allegations can be construed as referring to polygraph tests given
as part of Petersen’s parole conditions. Even if he had provided such link, however, Petersen
provides no dates by which the Court might discern whether his claim is timely.
Therefore, the Court concludes that even if the continuing violation doctrine were properly
applied to § 1983 claims in this Circuit, Petersen has failed to demonstrate Defendants’ “continual
unlawful acts” as opposed to “continual ill effects from the original violation.” Mata, 635 F.3d at
1253. The Court respectfully recommends that Judge Moore grant the motion to dismiss the First
Claim for Relief as it pertains to Petersen.
Failure to State the First Claim for Relief
For example, Petersen does not allege that Defendants required he pass a polygraph test
before they would permit him to contact his daughter, or that the polygraph tests were required by
statute or regulation pertaining to his contact with minor children.
Defendants argue that Plaintiffs Wesley and Jessica Specht’s familial association claims fail
because (1) their claims are the same or similar to that dismissed in Wirsching v. Colo., 360 F.3d
1191, 1201 (10th Cir. 2004), and (2) they fail to allege that by administering the subject policy
prohibiting visitation by a victim with an incarcerated sex offender, the CDOC intends to interfere
with the husband/wife relationship. Plaintiffs counter that Mrs. Specht is now an adult and Mr.
Specht is“no longer in a position of trust” and they have since decided to marry; accordingly, Mrs.
Specht is no longer a “victim” and the policy as applied to the Spechts is not reasonably related to
legitimate penological interests. Defendants reply repeating their contention that the allegations fail
to reveal any “intent” to interfere.
To state a claim for the deprivation of the right of familial association, the Plaintiffs must
allege that (1) Defendants intended to deprive them of their protected relationship with each other,
and that (2) balancing the Plaintiffs’ interest in their protected relationship against the state’s
interests in protecting victims and maintaining a secure facility, Defendants either unduly burdened
Plaintiffs’ protected relationship, or effected an “unwarranted intrusion” into that relationship.
Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014) (citations omitted). 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.
With respect to this claim, the Plaintiffs allege:
Mr. Specht’s “victim” is now his wife, Jessica Specht. On July 13, 2012, the
date Mr. Specht was sentenced, the Jefferson County District Court vacated the
protection order prohibiting contact between Mr. Specht and Jessica. She went to
visit him twice in the county jail before he was transferred to the DOC. They were
married on March 27, 2013 when she was nineteen years old. Mr. Specht just turned
30 years old. Colorado allows marriage by proxy, and therefore the parties to a
marriage do not need to be in the same room in order to become legally married.
Mr. Specht’s sister Megan Lee Boozer is two years older than Mr. Specht and
is the mother of Mr. Specht’s niece and nephew born in 2005 and 2013. Jessica and
Zachary Zanghi are long time friends of Mr. Specht. They are the parents of two
children born in 1998 and 2003, and these children grew up knowing Mr. Specht.
The Colorado DOC has denied Mr. Specht all visitation with his wife and any
other person under the age of eighteen including Mr. Specht’s niece and nephew and
the Zanghi children. Mr. Specht and his family and Ms. Zanghi filed grievances and
other inquiries regarding the denial of visitation. Mr. Specht is incarcerated at
Crowley County Correctional Facility, and the Warden of that facility at all material
times was Warden Miller, and the Mental Health Director was Don Plagge. Mr.
Specht’s application for visitation with his wife, other family members and the
Zanghi children was submitted to Dan Plagge in October 2013. Mr. Plagge submitted
the application to the DOC visitation committee, but his application was denied. On
March 19 and 20 Jessica Zanghi personally talked to Warden Miller who told her
that Mr. Specht would never be permitted to have visitation with his wife or anyone
under the age of 18. Mr. Specht has exhausted all administrative remedies that are
reasonably available, and given Warden Miller’s directives any attempts to resolve
this dispute administratively is futile.
TAC, ECF No. 102.6 For the first prong of the analysis, the Court concludes that Plaintiffs’
allegations plausibly state an intent to interfere with the Spechts’ marriage relationship. That is, a
reasonable fact finder could conclude that the warden of Crowley County Correctional Facility,
Warden Miller, after speaking with Specht’s close friend, Mrs. Zanghi, about the circumstances7 and
informing her that Specht “would never be permitted to have visitation with his wife,” specifically
intended to, or with conscious disregard to Plaintiffs’ rights did, interfere with the husband/wife
relationship. See Estate of B.I.C. v. Gillen, 710 F.3d 1168, 1175–76 (10th Cir. 2013) (citing Bryson
v. City of Edmond, 905 F.2d 1386, 1393–94 (10th Cir. 1990)).
After a lengthy description of the Tenth Circuit’s opinion in Wirsching, supra, Defendants
argue, “Plaintiffs’ claims regarding the visitation with minor[s] fails [sic].” Mot. 8. Plaintiffs’
response does not address this argument with respect to Mr. Specht; therefore, the Court
concludes Specht has abandoned his claim concerning visitation with his niece and nephew.
Even if he had not done so, the Court finds that Plaintiffs’ allegations do not plausibly state the
Defendants intended to interfere with Specht’s relationship with his niece and nephew and, thus,
to the extent necessary, recommends that Judge Moore grant the motion to dismiss Specht’s
claims concerning his niece and nephew.
There is no indication in the TAC that Mrs. Zanghi spoke with Warden Miller about
Specht’s visitation with minor children other than her own, who are not Specht’s family members.
Under the second prong, the Court finds the allegations plausibly state a “burden” or
“unwarranted intrusion” into the relationship considering the interests of the parties. Regarding the
severity of the infringement, Plaintiffs allege the Defendants have “denied Mr. Specht all visitation
with his wife.” TAC ¶ 74 (emphasis added). The Spechts have been married nearly four years,
since March 27, 2013. The Court finds such denial severe. See Boddie v. Conn., 401 U.S. 371, 376,
383 (1971) (“marriage involves interests of basic importance in our society” and is “a fundamental
Certainly, a state’s interest in protecting sexual offense victims and maintaining a secure
facility are important. But, here, where (allegedly) the victim is now a 23-year-old adult and the
offender’s wife, the Defendants’ need to protect her diminishes. Additionally, the Defendants have
not identified how the facility’s security would be affected by allowing in-person visits between the
Finally, the Court can perceive of no reasonable alternative courses of action that might
substitute for in-person visits between the Spechts. Defendants contend that “[o]ffenders do not
have a constitutional right to contact visits.” Mot. 6. However, it does not appear that Plaintiffs
here are challenging the application of a policy concerning “contact” visits, but rather any in-person
visits. TAC ¶¶ 74, 94.
Therefore, the Court finds Plaintiffs Wesley and Jessica Specht state plausible claims that
application of Administrative Regulation (AR) 300-01(IV)(B)(4)(f) interferes with their rights to
familial association, and recommends that Judge Moore deny Defendants’ motion to dismiss the
First Claim for Relief as it pertains to the Spechts.
Shields’ First Claim Not Ripe
The Court notes at the outset the confusion arising from Plaintiffs’ response brief in which
they first state, “The only claim[s] that Plaintiffs Steven Christensen and Jonathan Shields still have
are their Eighth Amendment claims for damages against their parole officers. Their claims for
prospective injunctive relief for denial of their right to familial association are moot.” Resp. 1.
Plaintiffs then proceed to argue that “Mr. Shield’s [sic] claim for injunctive relief against the parole
board is ripe for review.” Id. at 16–18. However, the Defendants do not note this inconsistency and
argue Shields’ claim is not ripe for review. Reply 6–7.
With respect to this claim, Shields alleges:
Mr. Shields’ second parole revocation hearing took place on March 10, 2014,
presided over by Defendant Joe Morales. At this hearing, all the false allegations that
Mr. Shields forcibly sodomized his cousins, that he threatened to kill his cousins dog
and other family members in order to cast Mr. Shields in a false light that he was
“dangerous.” Morales revoked Mr. Shields’ parole and sent him to the DOC for a
180[-] day turnaround. Morales threatened Shields that if he was revoked a third time
that he would be remanded to the DOC for the rest of his life without the possibility
of parole. Morales refused to acknowledge that Shields is a brain damaged juvenile
offender, and that remanding him to the DOC for the rest of his life without the
possibility of parole would be in express violation of Miller v. Alabama, 132 S.Ct.
2455 (2012), Jackson v. Hobbs, 132 S.Ct. 548 (2012) and Graham v. Florida, 130
S.Ct. 2011, 2030 (2010). There is no Colorado statute that provides for judicial
review of parole board action, and therefore there is no judicial review of a parole
revocation proceeding. Consequently, if the parole board imprisons a juvenile
offender, for life without possibility of parole, in violation of Miller v. Alabama, 132
S.Ct. 2455 (2012), Jackson v. Hobbs, 132 S.Ct. 548 (2012) and Graham v. Florida,
130 S.Ct. 2011, 2030 (2010), there is no way for that juvenile offender to seek relief
in the Colorado state courts.
TAC, ECF No. 102.
Notwithstanding Plaintiffs’ argument that Shields is “in imminent danger of harm,” the Court
agrees with Defendants that Shields’ claim seeking “an injunction against the parole board members
enjoining them from remanding him to the DOC for the remainder of his life without the possibility
of parole in the future without first giving him procedural due process and an individualized
sentencing hearing” (TAC ¶ 96 (emphasis added)) is not ripe for review. “A claim is not ripe for
adjudication if it rests upon ‘contingent future events that may not occur as anticipated, or indeed
may not occur at all.’” Tex. v. United States, 523 U.S. 296, 300 (1998) (quoting Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)). In fact, in a case cited by the Plaintiffs,
the Tenth Circuit held “a person alleging that he has been deprived of his right to procedural due
process must prove two elements . . . .” Couture v. Bd. of Educ. of Albuquerque Pub. Schs., 535 F.3d
1243, 1256 (10th Cir. 2008) (emphasis added). The Court cannot issue an injunction based on
speculative future events.
Therefore, the Court finds Shields has failed to state a plausible claim for violation of his
Fourteenth Amendment procedural due process right and recommends that Judge Moore grant the
Defendants’ motion to dismiss the First Claim for Relief as it pertains to Shields.
Failure to State Second Claim for Relief
For this claim asserted by Shields and Christiansen against the individual Defendants,
Duncan and Dawes, the Defendants assert qualified immunity from such claims. Qualified
immunity protects from litigation a public official whose possible violation of a plaintiff's civil rights
was not clearly a violation at the time of the official's actions. See Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). “It is an entitlement not to stand trial or face the other burdens of litigation.”
Ahmad v. Furlong, 435 F.3d 1196, 1198 (10th Cir. 2006) (internal quotations and citations omitted).
“The privilege is an immunity from suit rather than a mere defense to liability.” Id.
Qualified immunity is designed to shield public officials and ensure “that erroneous suits do
not even go to trial.” Hinton v. City of Elwood, Kan., 997 F.2d 774, 779 (10th Cir. 1993) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). Consequently, courts should address the qualified
immunity defense at the earliest possible stage in litigation. Medina v. Cram, 252 F.3d 1124,
1127-28 (10th Cir. 2001); Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir. 1995).
When a defendant asserts the defense of qualified immunity, the burden shifts to the plaintiff
to overcome the asserted immunity. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
“The plaintiff must demonstrate on the facts alleged both that the defendant violated his
constitutional or statutory rights, and that the right was clearly established at the time of the alleged
unlawful activity.” Id. (citing Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 818 (2009)). The
Supreme Court affords courts the discretion to decide “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.” Pearson, 555 U.S. at 232-35; see also Christensen v. Park City Mun. Corp., 554 F.3d 1271,
1277 (10th Cir. 2009).
Here, the Court will analyze first whether Shields and Christiansen state plausible Eighth
Amendment violations and, if they do, the Court will consider next whether the Plaintiffs’ Eighth
Amendment rights were clearly established at the time of the alleged conduct.
Legal Standards for Eighth Amendment Violations
Under the Eighth Amendment, prisoners are constitutionally entitled to “humane conditions
of confinement guided by ‘contemporary standards of decency.’” Penrod v. Zavaras, 94 F.3d 1399,
1405 (10th Cir. 1996) (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Accordingly, prison
officials must “ensur[e] inmates receive the basic necessities of adequate food, clothing, shelter, and
medical care and ... tak[e] reasonable measures to guarantee the inmates’ safety.” Barney v.
Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (citing Farmer v. Brennan, 511 U.S. 825, 832-33
(1994)). Prisoners state a claim of cruel and unusual punishment under the Eighth Amendment by
alleging prison officials demonstrated “deliberate indifference to a prisoner’s serious illness or
injury,” or that prison officials “have, with deliberate indifference,” involuntarily exposed a prisoner
to conditions “that pose an unreasonable risk of serious damage to [the inmate’s] future health.”
Helling v. McKinney, 509 U.S. 25, 35 (1993); Estelle, 429 U.S. at 105. Here, the Plaintiffs allege
the latter, commonly referred to as a “conditions of confinement” claim.
The Eighth Amendment requires prison officials to maintain “humane conditions of
confinement.” Farmer v. Brennan, 511 U.S. 825, 832 (1994). As in all Eighth Amendment claims,
to show a violation of this requirement a prisoner must show an objective component and a
subjective component. Id. First, he must show that the conditions of confinement posed a
“substantial risk of serious harm” to inmate health or safety. Id. at 834. To satisfy this prong, a
prisoner must show that the conditions were more than uncomfortable. Id.
Second, the prisoner must show that officials acted with a “deliberate indifference” to the
risk. Id. The subjective prong requires a showing that the officials were actually aware of the risk
and that they failed to take “reasonable measures to abate it.” Id.
An inquiry into conditions of confinement necessarily relies on the particular facts of each
situation. DeSpain v. Uphoff, 264 F.3d 965, 974 (10th Cir. 2001). The “circumstances, nature, and
duration” of the challenged conditions must be considered, with no single factor controlling the
outcome. Id. (“the length of exposure to the conditions is often of prime importance”). “In general,
the severity and duration of deprivations are inversely proportional, so that minor deprivations
suffered for short periods would not rise to an Eighth Amendment violation, while substantial
deprivations of shelter, food, drinking water, and sanitation may meet the standard despite a shorter
Do Plaintiffs State Eighth Amendment Violations?
For their Eighth Amendment claims, Shields and Christiansen allege that their respective
parole officers, Duncan and Dawes, required them to stay in unclean, rodent- and insect-infested
motel rooms while on parole. Defendants argue the “Plaintiffs fail to allege that either of these
defendants had any control over the [motels’] conditions or had any authority to change the
locations.” Mot. 14. Plaintiffs counter that Shields was “imprisoned” in a filthy, vermin infested
room at the Carriage Inn on East Colfax Avenue in Denver from July 29 to August 21, 2014 with
no ability to keep food fresh or bathe himself; Christiansen was “imprisoned” under similar
circumstances at the Motel 8 on East Colfax Avenue. Plaintiffs interpret Defendants’ arguments as
challenging the “deliberate indifference” prong of an Eighth Amendment claim and contend the
pleadings and motions in this case demonstrate Defendants’ knowledge of the conditions.
Defendants reply that the TAC does not include the allegations Plaintiffs now present to show
deliberate indifference and, since the TAC is silent, Plaintiffs’ claims must fail.
In the TAC, Plaintiffs allege the following for their Eighth Amendment claims:
The female stalker who had been harassing Mr. Shields and placing the
anonymous calls to his parole officer went to the Phoenix Center after March 10,
2014 and falsely represented herself as Mr. Shields’ “girlfriend.” Without checking
her identification or her claim to be authorized to pick up Mr. Shields’ possessions,
Phoenix Center gave this woman Mr. Shields’ jewelry (including a crucifix and
chain), his watch, his wallet that contained his ID and Social Security Card and an
Mr. Shields was released from the DOC on July 29, 2014. He was dropped
of at the Denver Reception and Diagnostic Center on Smith Road, without any
clothes, money, identification or transportation and was expected to fend for himself
and figure out how to get to Ms. Duncan’s office.
Ms. Duncan ordered Mr. Shields to live in the Carriage Inn, a dive motel, in
an extremely dangerous neighborhood, on East Colfax in a room that was infested
with bed bugs and other vermin. This Carriage Inn is filled with other parolees who
are sex offenders and many of them have been robbed, assaulted, had their faces
smashed in, bones shattered and been victims of other violent crime because the area
is so unsafe. After living in this room for three weeks, Mr. Shields was covered in
bed bug bites. He had no clothes except for one pair of shorts, one pair of socks, no
shirts and just one white undershirt/ tank top. He had no money to buy food or
clothes, and a pro bono attorney had to bring him food and the small amount of cash
that she was saving for him from his 2013 income tax refund. Since the Phoenix
Center recklessly allowed the stalker to steal his wallet, he had no ID when he was
released on parole and cannot obtain a new one without an original birth certificate,
which he does not have and he had no permission to go to the applicable state office
to attempt to obtain a replacement. The bed bug bites were clearly visible, and
anyone with normal vision, such as Ms. Duncan, could clearly see the bed bug bites.
Additionally, Mr. Shields repeatedly told Ms. Duncan on or before August 9, 2014
about the problems with his room in the Carriage Inn mot[el] (that it was infested
with bed bugs, that the plumbing was broken so he had no hot water and could not
shower because the tub would not drain and he would get his ankle monitor wet, that
his sink was clogged, that he was not given clean linens, that he had no way to clean
the bedbugs off of his clothes and line[n]s, that he had no way to keep fresh food in
his room because the refrigerator was broken and filthy and the room was filthy and
had a nasty odor). However, Ms. Duncan ignored these [complaints], told Mr.
Shields that he was not allowed to go anywhere else to eat and had to buy food to eat
in his room that he had to wash his clothes in the “sink” (despite the fact it was
clogged and there was no hot water), and also told him that he was required to stay
in the Carriage Inn because all Adams County parolees were required to reside at the
Carriage Inn if they were paroled homeless. . . .
Ms. Duncan left a message for Mr. Shields on August 9, 2014 and told him
that he could not have contact with any other person, including his parents. His father
was going to come over and help him try to get rid of the bed bugs, but now he is not
even allowed to speak to his parents on the telephone. Duncan instructed Mr. Shields
that he could not go anywhere except the parole office, his sex offender treatment
office, the place where he does urinalysis and the office where his ankle monitor was
installed. He was not allowed to go anywhere to buy food, personal hygiene
products, including Walmart and the Gas Station. He was previously allowed to go
grocery shopping twice a week. He was not allowed to work or search for work. He
was not allowed to go to a Laundromat to wash his clothes. Duncan instructed him
to wash out his clothes in his sink, but there is substandard plumbing in the dive
motel and Mr. Shields’ sink in his room was plugged up. In any event, without soap,
or the ability to go buy any soap, Mr. Shields could not rinse out his clothes in his
. . . After Mr. Shields filed the Complaint in this case on August 12, 2014 and
filed a motion for a preliminary injunction on August 13, 2014[,] [t]he Court set a
hearing on the Motion for Preliminary Injunction several days later, and then Ms.
Duncan dramatically changed her position. On or about August 21, 2014 Ms. Duncan
removed the restriction that Mr. Shields could not see or talk to his parents. She gave
him permission to make additional trips to the Grocery Store and to go visit his
parents at their house. Mr. Shields went to his parents’ house and was able to clean
up with hot water and wash his clothes. On Monday August 24, 2014, Ms. Duncan
had found other housing for Mr. Shields. . . .
The only restriction placed on Mr. Christiansen after his discharge from
parole was to continue to register as a sex offender. He has been accused several
times of failing to do so, and on December 3, 2013 (about 10 weeks after the birth
of his daughter), he was sentenced to nine months DOC after pleading guilty to
failing to register in Adams County District Court case number 2013CR1049. There
is no allegation whatsoever that Mr. Christiansen ever committed an offense or was
sexually inappropriate against his daughter, any other family member or anyone else
since the 1998 allegations. Pursuant to the definition of “sex offense” in CRS
16-11.7-102(3), failure to register is not considered a “sex offense.” However,
pursuant to the SOMB Guidelines and CRS 16-11.7-102(1) and (2)(a) since Mr.
Christiansen was convicted of a sex offense listed in CRS 16-11.7-102(3) pursuant
to a prior conviction, he can still be designated as a “sex offender” and subject to the
SOMB Guidelines for the treatment and monitoring of sex offenders while he was
on parole. Therefore, upon his parole, Mr. Christiansen was subjected to the one
sized fits all SOMB Guidelines which provide that no sex offender may have contact
with any person under the age of 18, even their own children. Ms. Dawes directed
that Mr. Christiansen was prohibited from living in his own home with his wife and
daughter, and therefore Mr. Christiansen was paroled as homeless.
Ms. Dawes ordered Mr. Christiansen to live in the Motel 9, from September
9 - October 7, 2014, another dive motel in an extremely dangerous neighborhood on
East Colfax in a room that is infested with rodents and other vermin. This dive motel
is filled with other parolees who are sex offenders and many of them have been
robbed, assaulted, had their faces smashed in, bones shattered and been victims of
other violent crime because the area is so unsafe. Mr. Christensen is indigent and
homeless, unable to live with or even talk with his wife. He has very limited money
for food. At Motel 9, what food he did have would be contaminated by the mice or
rats that live in the motel. His Ramen noodles would be ripped open and partially
eaten. He could not afford to have to throw away this food, and he often went
hungry. He was ordered to stay in his room and not leave without the permission of
Ms. Dawes. He ran out of his bipolar medication, such as lithium and welbutran
[sic]. Ms. Dawes refused to give him permission to have his medications refilled and
told him that he was using mental illness as an “excuse.” Mr. Christiansen repeatedly
informed Ms. Dawes that there were rodent feces in his boxspring mattress which the
Motel 9 refused to clean up or give him a mattress that was not infested with vermin.
The heat did not work. The bathroom did not have operational plumbing and Mr.
Christiansen was forced to use another inmate’s bathroom down the hall. Motel 9
refused to supply him with a topsheet, and all he was given was a filthy bottom sheet
(with no way to wash it) to cover over the vermin and feces infested mattress.
However, Ms. Dawes ignored his complaints. The window was broken and taped
over. Most mornings, Mr. Christiansen was able to take pictures of dead mice in his
room with his cell phone. Motel 9 management refused to clean up the rodents or call
an exterminator. Every time Mr. Christiansen tried to complain to the Motel 9
manager, he was threatened with being tattled on to his parole officer for some non
existent infraction. Mr. Christiansen did not commit any offense or parole violation
while forced to live at Motel 9; instead, the Motel 9 management was extorting his
silence by threatening to make false complaints to his parole officer.
On or about October 7, 2014, Ms. Dawes informed Mr. Christiansen that he
would have to start paying $245 a week for the motel room at Motel 9 or face
revocation and go back to the DOC. He cannot afford to pay that fee plus the cost of
housing for his wife and daughter. On October 13, 2014 Mr. Christiansen was
allowed to move in with other family members in Commerce City but not his wife.
Therefore, he endured five months [sic] of imprisonment in the vermin infested
Motel 9. On October 22, 2014 Misty Christiansen and the baby had to move into a
homeless shelter in Aurora. If they were allowed to live with Mr. Christiansen in
Commerce City, they would not have been homeless.
TAC, ECF No. 102.
First, it is well-settled that an offender “on parole” remains in the custody of the state. See
Maleng v. Cook, 490 U.S. 488, 491 (1989) (citing Jones v. Cunningham, 371 U.S. 236 (1963)) (“a
prisoner who had been placed on parole was still ‘in custody’ under his unexpired sentence” because
his “release from physical confinement under the sentence in question . . . was explicitly conditioned
on his reporting regularly to his parole officer, remaining in a particular community, residence, and
job, and refraining from certain activities.” ). There is no dispute that the allegations reflect Duncan
and Dawes were acting in their capacities as “parole officers” while engaging in the alleged
unconstitutional conduct. Accordingly, to the extent Defendants argue they had no control over
where the Plaintiffs were housed while on parole, such argument is not persuasive.
The Court concludes that Plaintiffs plausibly allege their conditions of confinement at the
motels posed a “substantial risk of serious harm” to their health. First, Shields, allegedly
developmentally disabled, was “ordered” by Duncan to refrain from contacting his parents and to
live at the Carriage Inn for nearly four weeks in a room infested with bed bugs, no hot water,
clogged drains, dirty linens, and a broken refrigerator, such that he could not clean himself or his
clothes or linens, suffered multiple bedbug bites, and was able to eat only “junk” food that required
no refrigeration. Shields’ only clothes were a tank top and a pair of shorts. In addition, Duncan
instructed Shields that he could go nowhere except the parole office, his sex offender treatment
office, the place where his urinalyses were performed, and the office where his ankle monitor was
installed; thus, he could not go to a store to purchase healthier food and/or soap or to a laundromat
to clean his clothes/linens. Under such conditions where Shields was forced to live in unclean
clothes and stay in a filthy, infested room for nearly four weeks, the Court finds Shields’ allegations
meet the objective prong of an Eighth Amendment claim.
Similarly, Christiansen (indigent and homeless because he was not allowed contact with his
wife) was ordered by Dawes to live in the Motel 9 from September 9 - October 7, 2014. Dawes
ordered Christiansen to stay in his room and not leave without her permission. In his room, his food
was repeatedly contaminated by mice or rats; for example, his Ramen noodles were ripped open and
partially eaten, but he could not afford to throw away this food and he often went hungry. He ran
out of his bipolar medication, Lithium and Wellbutrin, but Dawes refused to permit him to have his
medications refilled and told him that he was using mental illness as an “excuse.” The heat did not
work, the window was broken and taped over, and the bathroom did not have operational plumbing
so Christiansen was forced to use another inmate’s bathroom down the hall. Christiansen repeatedly
informed Dawes that there were rodent feces in his mattress, which the motel management refused
to clean up or replace with a clean mattress; moreover, the motel refused to supply him with a
topsheet, and all he was given was a filthy bottom sheet (with no way to wash it) to cover over the
mattress. Most mornings, Christiansen took pictures of dead mice in his room with his cell phone,
but the motel management refused to clean up the rodents or call an exterminator. Every time
Christiansen complained to the motel’s manager, the manager “extorted” his silence by threatening
to make false complaints to his parole officer. The Court concludes these allegations plausibly state
a claim for failure to “provide humane conditions of confinement” and to “ensur[e] inmates receive
the basic necessities of adequate food, clothing, [and] shelter.” DeSpain, 264 F.3d at 974.
The Court also concludes that Plaintiffs’ allegations plausibly state the second prong of an
Eighth Amendment claim: that Defendants were actually aware of the risk of harm and failed to take
“reasonable measures to abate it.” Farmer, 511 U.S. at 834. Shields alleges that he “repeatedly told
Ms. Duncan on or before August 9, 2014 about the problems with his room in the Carriage Inn
mot[el]” but she “ignored these [complaints], told Mr. Shields that he was not allowed to go
anywhere else to eat and had to buy food to eat in his room[,] that he had to wash his clothes in the
‘sink’ (despite the fact it was clogged and there was no hot water), and also told him that he was
required to stay in the Carriage Inn because all Adams County parolees were required to reside at
the Carriage Inn if they were paroled homeless.” TAC ¶ 28. It was not until after Shields filed the
present action that Duncan “removed the restriction that Mr. Shields could not see or talk to his
parents,” “gave him permission to make additional trips to the Grocery Store and to go visit his
parents at their house,” and “found other housing for Mr. Shields.” Id. ¶ 30. These allegations both
rebut Defendants’ contention that “Plaintiffs fail to allege ... these defendants had any control over
the conditions or had any authority to change the locations” (Mot. 14) and support Shields’ claim
that Duncan was aware of the squalid conditions and failed to abate them.
Likewise, Christiansen alleges he “repeatedly informed Ms. Dawes” of the rodents, the fecesinfested mattress, the lack of heat and operational plumbing, and the dirty linens, but she “ignored
his complaints.” TAC ¶ 42. Then, after nearly four weeks, Dawes required that Christiansen start
paying $245/week to live in the motel or face revocation of his parole. Id. ¶ 43. Finally, “on
October 13, 2014 Mr. Christiansen was allowed to move in with other family members in Commerce
City.” Id. The Court finds these allegations reveal Dawes was aware of the conditions of
Christiansen’s confinement for several weeks, but failed to abate them.
Accordingly, the Court finds the Plaintiffs’ allegations plausibly state violations of Shields’
and Christiansen’s Eighth Amendment rights against Duncan and Dawes.
Were Plaintiffs’ Eighth Amendment Rights Clearly Established?
To overcome Duncan’s and Dawes’ defense of qualified immunity, the Plaintiffs’ rights
alleged to have been violated must have been clearly established in the law at the time of the alleged
violation. Pearson, 555 U.S. at 232. For a constitutional right to be clearly established, its contours
must be “sufficiently clear that a reasonable official would understand that what he is doing violates
that right.” Hope v. Pelzer, 536 U.S. 730, 739 (2002). A plaintiff demonstrates that a constitutional
right is clearly established by referring to cases from the Supreme Court, the Tenth Circuit, or the
weight of authority from other circuits. Riggins v. Goodman, 572 F.3d 1101, 1107 (10th Cir. 2009).
The Court finds that the right to be free from cruel and unusual punishment by preventing
lengthy exposure to inadequate heating, bedding, plumbing, and hygiene was clearly established in
Ramos v. Lamm, 639 F.2d 559, 568 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981) (the Eighth
Amendment requires that a state “provide within [an inmate’s] living space reasonably adequate
ventilation, sanitation, bedding, hygienic materials, and utilities (i.e., hot and cold water, light, heat,
Furthermore, the Tenth Circuit has concluded that “the constitutional prohibition against
allowing an inmate to remain in a cell rendered hazardous by pervasive infestations of pests was
clearly established in December 2007.” Benshoof v. Layton, 351 F. App’x 274, 279 (10th Cir. Oct.
27, 2009) (citing Ramos, DeSpain, and McBride v. Deer, 240 F.3d 1287, 1291–92 (10th Cir. 2001)).
In Benshoof, the Tenth Circuit noted that “a high degree of factual similarity is not required to
conclude that the law was clearly established,” explaining that the Supreme Court’s opinion in Hope,
536 U.S. at 741, “shifted the qualified immunity analysis from a scavenger hunt for prior cases with
precisely the same facts toward the more relevant inquiry of whether the law put officials on fair
notice that the described conduct was unconstitutional.” Id. at 278 (citing Casey v. City of Fed.
Heights, 509 F.3d 1278, 1284 (10th Cir. 2007)).
Here, although the facts of this case are not precisely the same as those in Ramos, DeSpain,
and McBride, these cases put Defendants on fair notice that ordering parolees to be housed in pestinfested, dirty rooms with inadequate heating, plumbing, bedding, and hygienic materials is
unconstitutional. Accordingly, at this stage of the proceeding, the Court finds the Defendants
Duncan and Dawes are not entitled to qualified immunity and, thus, the Court recommends that
Judge Moore deny the Defendants’ motion to dismiss the Second Claim for Relief brought by
Shields and Christiansen against Defendants Duncan and Dawes.
Accordingly, based on the foregoing and the entire record herein, this Court respectfully
recommends that the Defendants’ renewed Motion to Dismiss [filed October 31, 2016; ECF No.
204] be granted in part and denied in part as follows:
Grant the motion to dismiss the First Claim for Relief brought by Plaintiffs Petersen and
Shields against the official-capacity Defendants;
Deny the motion to dismiss the First Claim for Relief brought by Plaintiffs Wesley and
Jessica Specht against the official-capacity Defendants; and
Deny the motion to dismiss the Second Claim for Relief brought by Plaintiffs Shields and
Christiansen against Defendants Duncan and Dawes.
Entered and dated at Denver, Colorado, this 6th day of February, 2017.
BY THE COURT:
Michael E. Hegarty
United States Magistrate Judge
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