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

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

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Filed 01/10/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-01993-WYD-BNB JEFFREY SCOTT BEEBE, Plaintiff, v. PEGGY HEIL, SALLY CHAPMAN, MITCH MESTAS, and JOSEPH ORTIZ, Defendants.

OBJECTION TO RECOMMENDATION OF MAGISTRATE JUDGE Pursuant to Fed. R. Civ. P. 72 (a) and 28 U.S.C. § 636, Defendants, through the Colorado Attorney General, hereby object to Magistrate Judge Boyd N. Boland's recommendation that Plaintiff's motion for summary judgment be granted to the extent it seeks a declaration that the Plaintiff has a liberty interest in continued treatment under section 18-1.3-1004(3), C.R.S. STATEMENT OF THE CASE On February 20, 2001, Plaintiff Jeffrey Beebe ("Beebe") was sentenced to an indeterminate sentence of three years to life pursuant to C.R.S. § 16-13-804, presently codified at C.R.S. § 18-1.3-1004.

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

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Filed 01/10/2006

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On July 20, 2001, while incarcerated at the Fremont Correctional Facility, Beebe signed a Phase I Treatment Contract, and began participation in the program on or about September 20, 2001. On or about May 15, 2002, Beebe was terminated from the SOTMP for continued contact with a minor. Beebe's Amended Complaint asserts one claim alleging Defendants violated his procedural and substantive due process rights when he was terminated from the treatment program "without prior written notice of the reason for his termination, without an opportunity to be heard by a neutral fact-finder, without an opportunity to present evidence in his defense, and without an opportunity to present witnesses in his defense." Beebe alleges that under his indeterminate sentence he is required to participate in sex offender treatment before he will be considered for parole, and thus, has a protected liberty interest in continued participation in the Sex Offender Treatment and Monitoring Program ("SOTMP"). SOTMP is the treatment program established by the CDOC. ARGUMENT A. Beebe does not have a protected liberty interest in continued participation in the Sex Offender Treatment and Monitoring Program. The U.S. Magistrate Judge recommends that the Court grant Beebe's motion for summary judgment to the extent it seeks a declaration that the Plaintiff has a liberty interest in continued appropriate treatment under section 18-1.3-1004(3), C.R.S. because in this Court's order of August 30, 2004, the Court interpreted section 18-1.3-1004, C.R.S., to require that "participation in a treatment program is an absolute prerequisite for

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

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release on parole." (Recommendation, p. 9) (Citing Beebe v. Heil, 333 F. Supp. 2d 1011, 1012 (D. Colo. 2004)). When the Court determined that a prisoner has a liberty interest in the continued participation in the sex offender treatment program, it relied on the Third Circuit Court of Appeal's decision in Leamer v. Fauver, 288 F.3d 532 (3rd Cir. 2002), and found that "under Colorado's statutory scheme, `confinement and treatment are inextricably linked.'" Beebe v. Heil, 333 F. Supp. 2d 1011, 1016 (D. Colo. 2004). However, the District Court did not have an opportunity to consider the evidence provided by Parole Board Chairman Allan F. Stanley in his affidavit, which is attached to Defendants' motion for summary judgment. Although sex offenders sentenced pursuant to the Lifetime Supervision Act must complete sex offender treatment as part of their sentence, the Parole Board's position has always been that the program can be completed during incarceration or during parole, which is part of the sentence. Sex offenders are not precluded from applying for parole. In fact, Beebe is parole eligible and the Parole Board has considered his application for parole on more than one occasion, even though he has been terminated from the treatment program. As argued in Defendants' motion for summary judgment, in Colorado a sex offender's successful progression in treatment during incarceration is but one factor the Parole Board considers in making a determination of whether to grant the sex offender parole. In addition, Plaintiff notes that the Supreme Court has held that state-created liberty interests are generally limited to freedom from restraint which imposes atypical
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and significant hardship on an inmate. Sandin v. Conner, 515 U.S. 472, 481 (1995). Requiring an inmate to abide by the terms and conditions of a treatment program does not impose atypical and significant hardship. Termination from the sex offender treatment program is not a "major change" in the condition of Plaintiff's confinement because contrary to his argument, his status has not changed from "eligible to be considered for parole" to "ineligible to be considered for parole". WHEREFORE, Defendants respectfully requests that this Court not follow the Magistrate Judge's Recommendation, and deny Plaintiff's motion for summary judgment to the extent it seeks a declaration that the Plaintiff has a liberty interest in continued treatment under section 18-1.3-1004(3), C.R.S. Respectfully submitted this 10th day of January, 2006.

JOHN W. SUTHERS Attorney General /s Joseph P. Sanchez __________________________ JOSEPH P. SANCHEZ Assistant Attorney General Civil Litigation and Employment Law Section Attorneys for the State of Colorado, and CDOC 1525 Sherman Street, 5th Floor Denver, Colorado 80203 D.C. Box No. 20 Telephone: (303) 866-4308 FAX: (303) 866-5443

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CERTIFICATE OF SERVICE I certify that on January 10, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following e-mail addresses: John B. Roesler, Esq. [email protected] Kirsten L. Wander, Esq. [email protected] I further certify that I have mailed or served the foregoing Objection to Recommendation of Magistrate Judge upon the following party by depositing copies of same in the United States mail, first-class postage prepaid, at Denver, Colorado, this January 10, 2006 addressed as follows: John B. Roesler, Esq. 303 E. Seventeenth Ave., Suite 200 Denver, CO 80203 Kirsten L. Wander, Esq. 646 Marion St., Suite 1 Denver, CO 80218 Cathie Holst Department of Corrections

S/ Mariah Cruz-Nanio

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