Free Judgment - District Court of Colorado - Colorado

Case 1:03-cv-00240-ZLW-BNB

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Filed 07/29/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Senior Judge Zita L. Weinshienk Civil Action No. 03-cv-00240-ZLW-BNB DAVID N. MARTINEZ, Plaintiff, v. RICK SOARES, Warden Sterling Correctional Facility, THE ATTORNEY GENERAL OF THE STATE OF COLORADO, KEN SALAZAR, STEP III GRIEVANCE OFFICER, EDD C. GILLESPIE, CASE MANAGER, J. HALLIGAN, CASE MANAGER, F. COURTNEY, CORRECTIONAL OFFICER PAUL CLINE, Case Manager III, and CORRECTIONAL OFFICER MAJ. MICHAEL L. EHRMANN, Defendants. _____________________________________________________________________ ORDER AND JUDGMENT OF DISMISSAL _____________________________________________________________________ The matter before the Court is Defendants' Motion To Dismiss (Motion). Pursuant to D.C.COLO.LCivR 72.1, the Court referred this matter to Magistrate Judge Boyd N. Boland, who recommended on February 18, 2004, that the Motion be granted and the Complaint be dismissed in its entirety. On April 29, 2004, Plaintiff filed Plaintiff' Response To Defendants [sic] Motion To Dismiss (Response) within the s extension of time that the Court granted, which the Court has construed as Plaintiff' s objections to the Recommendation.1 As required by 28 U.S.C. § 636(b), the Court has

See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint to less stringent standards than formal pleadings drafted by lawyers).

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reviewed de novo all portions of the Recommendation to which Plaintiff has filed objections, and has considered carefully the Recommendation, the objections filed, and the applicable case law.2 The Response is largely nonresponsive to the Recommendation. Plaintiff raises no objections to the Magistrate Judge' conclusions concerning his due process claim, s his Fifth Amendment claim, or his failure to state a claim under the Sixth, Eleventh, or Thirteenth Amendments. Plaintiff makes no objections concerning the Magistrate Judge' conclusion that s application of Colorado' Sex Offender Treatment and Management Program to Plaintiff s does not implicate the Ex Post Facto Clause. Rather, Plaintiff' argument concerning s his Ex Post Facto claim seems to be that changes made to the parole process after he was incarcerated amount to an increase in the punishment for his crime because the parole board has discretion to impose a period of parole that extends beyond the duration of the initial sentence imposed by the court.3 However, this argument is irrelevant because Plaintiff has not alleged that he has been placed on parole that extends beyond the duration of his sentence, but only that he was denied parole because he had not attended sex offender treatment or admitted his guilt. Plaintiff' s other argument concerning " acceptance of his guilty verdict"likewise is irrelevant

28 U.S.C. § 636(b). See also United States v. One Parcel of Real Property, 73 F.3d 1057, 1060 (10 Cir. 1996) (objections to magistrate judge' recommendation must be both timely and specific to s preserve an issue for de novo review by the district court or for appellate review).
th

2

See Beazell v. Ohio, 269 U.S. 167, 169-70 (1925) (defining ex post facto legislation as any statute that makes punishment for a crime previously committed more burdensome). 2

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because Plaintiff' sentence is the result of a conviction by a jury, not the acceptance of s a plea bargain. Plaintiff' objections to the Magistrate Judge' Recommendation concerning his s s Eighth Amendment claim fail to address the implications of the holding of Gwinn v. Awmiller that denial of good time credits and other privileges due to an inmate' failure s to admit that he committed sexual assault does not constitute an Eighth Amendment violation.4 It follows that the designation of an individual convicted of sexual assault as a sexual offender also does not violate the Eighth Amendment. The Magistrate Judge refused to address Plaintiff' equal protection claim, s finding that he raised it only in his first response to the Motion but not in his Complaint. Plaintiff objects that he did raise an equal protection claim in his Complaint because it was " intertwined within [his] 5th, 6th, 8th, 13th, and 14th Amendments Constitution Claims" [sic].5 Defendants addressed this claim in their Motion, evidently because Plaintiff set forth elements of it in his description of the parties to the action.6 However, even assuming Plaintiff properly raised an equal protection claim, nothing in Plaintiff' s Response overcomes the requirement that Plaintiff admit guilt prior to admission into a sex offender treatment program and that this applies to all inmates,7 or that an inmate

4

354 F.3d 1211, 1228 (10th Cir. 2004).

5

Response at 12. See Complaint, p. 2a, ¶¶ 5 & 6. Colorado Dept. of Corrections Administrative Regulation 700-19(IV)(F). 3

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has no right to participate in any treatment program.8 Thus, Plaintiff is not being treated differently than any other similarly situated inmate, and the failure to permit him to participate in a treatment program does not violate any of his rights. Accordingly, it is ORDERED that the Magistrate Judge' Recommendation is accepted and s adopted. It is FURTHER ORDERED that Plaintiff' Response To Defendants [sic] Motion To s Dismiss, construed as Plaintiff' objections to the Recommendation, is overruled. It is s FURTHER ORDERED that Defendants' Motion To Dismiss is granted. It is FURTHER ORDERED that Plaintiff' Prisoner Complaint and cause of action are s dismissed with prejudice. DATED at Denver, Colorado, this 28th day of July, 2005.

BY THE COURT:

s/Zita L. Weinshienk __________________________________ ZITA L. WEINSHIENK, Senior Judge United States District Court

Bailey v. Gardebring, 940 F.2d 1150, 1154-55 (8th Cir. 1991); People v. White, 656 P.2d 690, 695 (Colo. 1983). 4

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