Free Objection to Report and Recommendations - District Court of Colorado - Colorado

Case 1:02-cv-01993-WYD-BNB

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-1993-WYD-BNB JEFFREY SCOTT BEEBE, Plaintiff, v. PEGGY HEIL, SALLY CHAPMAN, MITCH MESTAS, and JOSEPH ORTIZ, Defendants. PLAINTIFF'S OBJECTIONS TO THE JANUARY 4, 2006 RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

COMES NOW Plaintiff, by and through his counsel of record, and pursuant to Rule 72(b) FRCP, and Title 28 USCA Section 636, respectfully objects to the Recommendation of U.S. Magistrate Judge Boyd N. Boland, entered in this cause on January 4, 2006, as it pertains to violation of the substantive due process liberty interest and reinstatement into sex offender treatment, upon the following three bases. First, Judge Boland identifies "one issue as particularly important in...[the substantive due process] analysis ­ whether a program or policy was in place to provide due process," emph. supp. (Recommendation, at p.15) Judge Boland is referring to this District Court's holding in

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Beebe v. Heil, 333 F.Supp. 3d 1011, 1018 (D. Colo. 2004), namely "I further find that the allegation that no program or policy was in place to provide due process to Plaintiff before he was arbitrarily deprived of his right to treatment in the program could satisfy the `shocks the conscience' test...," emph. supp. Despite Defendants' stipulation that "[n]either SOTMP nor its Standards and Guidelines provides for a due process hearing pertaining to termination from sex offender treatment," emph. supp., Joint Motion To Stay Pretrial Proceedings And Trial Setting Pending Rulings On Defendants' And Plaintiff's Respective Motions For Summary Judgment, And Brief In Support Thereof, Exhibit A, Stipulations, Stipulation No. 2, Judge Boland proceeds with a detailed analysis of a lesser "process", which is not relevant. What is relevant, pursuant to this District Court's finding in Beebe, supra at p.1018, is whether or not there was a "program or policy in place to provide due process...," emph. supp. Again, it was stipulated that there was not a due process procedure in place. See also the August 30, 2002, Colorado Department of Corrections (CDOC) letter denying Plaintiff's request for a due process hearing, Appendix To Plaintiff's Rule 56(a) Motion For Summary Judgment, at p.16 ("You claim you are being denied due process in the termination. *** Your request...is denied). Again, this District Court clearly found in Beebe that failure to provide due process in terminating sex offender treatment could satisfy the "shocks the conscience" test, yet Judge Boland mistakenly focuses on indicia of a lesser standard of procedure than due process procedure. Second, Judge Boland makes an argument that Defendants did not advance in their Motion For Summary Judgment, namely "there is evidence that plaintiff's termination was merely a `time out' from treatment...." (Recommendation, at p.18) This sua sponte argument reflects a misunderstanding of the factual evidence before the Court: see August 30, 2002, 2

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CDOC letter denying Plaintiff's request for a due process hearing, with reference to "termination", Appendix To Plaintiff's Rule 56(a) Motion For Summary Judgment, at p.16; Joint Motion To Stay Pretrial Proceedings, Exhibit A, Stipulation No. 22, "Chapman recommended... that plaintiff be terminated from treatment for allegedly having contact with a minor," emph. supp., Stipulation No. 23, "a consensus was reached to terminate plaintiff ", emph. supp., Stipulation No. 24, "plaintiff was informed that he was terminated from treatment," emph. supp., and Stipulation No. 32, "Plaintiff has not been reinstated into sex offender treatment to-date," emph. supp. Moreover, Defendants' Objection To Recommendation Of Magistrate Judge, at p.2, states that "on or about May 15, 2002, Beebe was terminated from the SOTMP for...contact with a minor," emph. supp. In light of Defendants' overwhelming characterization of this being a matter involving termination from treatment, and over three and a half years' passage of time without treatment, it is unreasonable to suggest a holding premised in any way upon this only being a "time out", or an integral part of "treatment". Moreover, Judge Boland notes inconsistently in his Recommendation, at p.9 fn.5, that "the lack of discretion to withhold treatment coupled with the withholding of treatment are now undisputed." Third, instead of using the Beebe procedural benchmark of whether there was a program in place to provide procedural due process, in the substantive due process analysis (which test, as stated above, the U.S. Magistrate did not utilize), conscience-shocking government action may be found by the act in and of itself of terminating state mandated sex offender treatment apart from whatever procedure was offered. Simply terminating this treatment, with ample time for reflection, constitutes shocking to the conscience arbitrary government action. Judge Boland does not allow for this independent basis of liability. He appears not to be considering the arguments and authorities in Plaintiff's Rule 56(a) Motion For Summary Judgment and 3

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Plaintiff's Response To Defendants' Motion For Summary Judgment, incorporated herein by reference, and errs in not utilizing the distinct substantive due process arguments. "`[T]he Due Process Clause contains a substantive component that bars certain arbitrary, wrongful government actions "regardless of the fairness of the procedures used to implement them."' Zinermon v. Burch, 494 U.S. 113...(1990)(quoting Daniels v. Williams, 474 U.S. 327, 331...(1986))." (Emph. Supp.) Beebe v. Heil, 333 F.Supp. 2d 1011, 1017 (D.Colo. 2004); Leamer v. Fauver, 288 F.3d 532, 546 (3rd Cir. 2002). Substantive due process violations generally are not based upon the seriousness of procedural due process violations. Consider application of the substantive due process liberty interest and procedural due process in another setting, public school corporal punishment. [P]unishments that are so grossly excessive as to be shocking to the conscience violate substantive due process rights, without regard to the adequacy of state remedies. (Emph. Supp.) Garcia By Garcia v. Miera, 817 F.2d 650, 656 (10th Cir. 1987), cert. denied, 485 U.S. 959 (1989). Uhlrig v. Harder, 64 F. 3d 567, 573 (10th Cir. 1995), offers guidance, citing Collins v. City of Harker Heights Tex., 503 U.S. 115 (1992), in considering the scope of substantive due process violations: "[T]he Due Process Clause's protection against `conscience shocking' conduct...[involves] deliberately wrongful government decisions....[T]he focus on deliberateness coheres with...recognition that a §1983 violation must be predicated on a state action manifesting...either (1) an intent to harm; or (2) an intent to place a person unreasonably at risk of harm." (Emph. Supp.) Footnote 8, 64 F.3d at p. 573, of Uhlrig clarifies the last statement above, as follows: [T]his latter form of intent is frequently referred to as `reckless' conduct. 4

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*** It differs from the non-intentional torts of negligence or gross negligence because, in reckless conduct, the defendant recognizes the unreasonable risk and actually intends to expose the plaintiff to such risks without regard to the consequences to the plaintiff. See Woodward v. City of Worland, 977 F.2d 1399 n.11 (10th Cir. 1992)("Recklessness is generally regarded as satisfying the scienter requirement of section 1983 because it requires proof that the defendant focused upon the risk of unconstitutional conduct and deliberately assumed...such risk.) ***; Archuleta v. McShan, 897 F.2d 495 (10th Cir. 1990) ***; Archie v. City of Racine, 847 F.2d 1211, 1219 (7th Cir. 1988)(en banc)(recklessness contains an intent component because the "reckless disregard"...is a form of...intent *** (Emph. Supp.) The main body of the Uhlrig opinion goes on to state, 64 F.3d at p. 574, that While "an intent to harm" follows the traditional tort law concept of intentionality, we have defined "an intent to place a person unreasonably at risk" (or reckless conduct) as when a state actor "was aware of a known or obvious risk that was so great that it was highly probable that serious harm would follow and he or she proceeded in conscious and unreasonable disregard of the consequences." *** (Emph. Supp.) Judge Boland does not consider that we have a form of intent in this case pursuant to Uhlrig. Even with his mid-range analysis of reckless conduct (in terms of what procedure was supplied short of due process) he errs in not relating the reckless conduct inquiry to this Uhlrig "intent" - namely the very fact of risk of obvious harm by arbitrary government action by terminating treatment with or without any degree of process. The Uhlrig court sets out a five part test, whereby the Plaintiff must demonstrate that (1) he was a member of a limited and specifically definable group (in the present case that would be the definable group of incarcerated sex offenders entitled to state mandated sex offender treatment); (2) Defendants' conduct put Plaintiff at substantial risk of serious harm (here that would be ineligibility for parole, and lack of rehabilitation); (3) the risk was obvious or known (here the statutory mandate to treat was in effect on May 15, 2002, when Plaintiff was

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terminated, and the directly analogous Leamer v. Fauver, 288 F.3d 532 (3rd Cir. 2002), case had been decided (government actors are imputed with the knowledge of their reasonably competent legal advisor, Garcia By Garcia, supra at p. 658)); (4) Defendants acted recklessly or in conscious disregard of that risk of harm (here, despite unconditional mandate to treat, Defendants terminated treatment, making treatment conditional upon satisfying certain CDOC prerequisites such as signing a contract, admitting infractions which were disputed (Plaintiff also made it clear that he wanted to be reinstated into treatment - that he was not refusing treatment, Appendix To Plaintiff's Motion for Summary Judgment, at p. 17)); and (5) Defendants' conduct when viewed in total is conscience-shocking (here the totality of factors include a statutory mandate to treat sex offenders, which is not conditional upon CDOC imposed modality, the purpose of the treatment and any advancement in treatment being a necessary factor of parole consideration; difficulty or impossibility of rehabilitation of the prisoner without treatment; life imprisonment if no treatment is provided; and cessation of treatment, despite the above, since May 15, 2002). "The Supreme Court [in County of Sacramento] has noted that, in the prison setting, the opportunity for deliberation may make the test [as to intent and substantive due process violation] more easily satisfied than in, for example, the setting of a police chase." Leamer, supra at p.547. standards: In contrast, under rapidly evolving situations requiring immediate responses...such as the high-speed chase that was at issue in County of Sacramento v. Lewis there can be no liability without "an intent to harm...", 523 U.S. at 854....But "deliberate indifference" is "sensibly employed only when actual deliberation is practical, and in the custodial situation of a prison, forethought about an inmate's welfare is not only feasible but obligatory under a regime that incapacitates a prisoner to exercise ordinary responsibility for his own welfare." Id. at 851. The Leamer court, id., uses the words "in contrast" to differentiate the two

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The Beebe decision supra at p. 1018, incorporates this language as well. It is Plaintiff's position that the Uhlrig "intent" is satisfied in this case. County of Sacramento, supra at p. 851, suggests an even lower threshold than deliberate indifference which creates a risk of harm in order to establish a substantive due process violation ­ where the state takes a person into custody and therefore has a duty to assume responsibility for his/her well-being (prisoner entitled to sex offender treatment), simple failure to provide for this state recognized human need (rehabilitation and possibility of parole) would transgress the substantive limits on state action set by the Due Process Clause under DeShanney v. Winnebego County Dept. of Social Services, 489 U.S. 189, 199-200 (1989). WHEREFORE, for the above-stated reasons, U.S. Magistrate Judge Boland's Recommendation, as it pertains to violation of the substantive due process liberty interest and reinstatement into sex offender treatment, is incorrect and should not be followed. Plaintiff is entitled to the full relief requested in his Motion for Summary Judgment. Dated this 17th day of January, 2006. Respectfully submitted,

/s/John B. Roesler ___________ John B. Roesler, Esq. 303 E. 17th Ave., Suite 200 Denver, CO 80203 and /s/Kirsten L. Wander ________ Kirsten L. Wander, Esq. 191 University Blvd., Suite 254 Denver, CO 80206 ATTORNEYS FOR PLAINTIFF 7

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CERTIFICATE OF SERVICE It is hereby certified that on January 17, 2006, a true and correct copy of the foregoing PLAINTIFF'S OBJECTIONS TO THE JANUARY 4, 2006, RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: [email protected]

/s/John B. Roesler ________ John B. Roesler

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