Free Motion to Consolidate Cases - District Court of Colorado - Colorado

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

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EXHIBIT A
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. JEFFREY SCOTT BEEBE, Plaintiff, v. JOE ORTIZ, in his official capacity as Executive Director of the Colorado Department of Corrections, Defendant. CIVIL COMPLAINT

Plaintiff states: 1. This is a suit for prospective equitable and injunctive relief under Title 42 U.S.C. § 1983, Title 42 U.S.C. §§ 2201 and 2202, and Rule 57, F.R.C.P., to declare section IV.F. "Criteria for Treatment" of the Colorado Department of Corrections (DOC) Administrative Regulation No. 700-19, Sex Offender Treatment and Monitoring Program (Regulation or SOTMP), null and void as facially and as applied in violation of the U.S. Constitution Fourteenth Amendment substantive due process liberty interest in statutorily mandated sex offender treatment, because it makes said treatment conditional upon the inmate fitting into a particular DOC-imposed modality.

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2. Jurisdiction is predicated on Title 28 U.S.C. §§ 1331 and 1343, and the aforementioned constitutional and statutory provisions. 3. Plaintiff is currently a DOC inmate (#108302) at the Kit Carson Correctional Center, Burlington, Colorado, and at the time of the occurrences alleged herein was a DOC inmate at the Fremont Correctional Facility located near Carson City, Colorado. 4. Plaintiff has standing under Article III of the U.S. Constitution to bring this action. He has suffered and continues to suffer denial of statutorily mandated sex offender treatment due to enforcement of the subject unlawful SOTMP criteria. This denial of treatment is likely to be redressed by the declaratory relief requested. 5. Defendant is now and was at all times pertinent hereto: a Colorado resident; Executive Director of the DOC, responsible for managing, supervising and controlling the DOC and responsible for the content of the policies and administrative procedures governing operation of the DOC and the enforcement thereof, including SOTMP; acting under color of state law; and is sued herein in his official capacity as Executive Director of the DOC. 6. Under Colorado law, a sex offender is "required as part of...[his/her] sentence to undergo treatment to the extent appropriate pursuant to...[§] 16-11.7-105, C.R.S.", § 18-1.31004(3), C.R.S.; likewise under § 16-11.7-105(1), C.R.S., "[e]ach sex offender sentenced by the court...shall be required, as part of any sentence to...incarceration with the department of corrections, to undergo treatment to the extent appropriate...." 7. The legislative purpose of said statutes is stated in § 18-1.3-1001, C.R.S.: The general assembly hereby finds that the majority of persons who commit sex offenses, if incarcerated...without treatment, will continue to present a danger to the public when released....[Further,] keeping all sex offenders in lifetime incarceration imposes an unacceptably high cost in both state dollars and loss of human potential.

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8. The decision in Beebe v. Heil, 333 F.Supp.2d 1011, 1016 (D.Colo. 2004), clarifies the meaning of the words "to the extent appropriate" in the above statutes. This language does not give the DOC discretion as to whether a sex offender should receive treatment; the provision pertains only to what kind of treatment. 9. Participation in treatment is a prerequisite to parole consideration. For a sex offender

to be eligible for release on parole, the parole board must consider whether the inmate has successfully progressed in treatment. § 18-1.3-1006(1)(a), C.R.S. 10. The state of Colorado has thus created a statutory scheme in which therapy for sex offenders is mandated, promised, and required for parole consideration, and the DOC is without discretion to decline the obligation. 11. Defendant, as Executive Director of the DOC, has/had at all times pertinent hereto an affirmative duty to ensure that the DOC provides said treatment to Plaintiff, not conditioned on Plaintiff's ability to fit into a particular DOC-imposed modality. 12. Defendant breached this duty and continues to do so by the issuance and enforcement of DOC's SOTMP criteria as referenced and as set forth below requiring Plaintiff, and other sex offenders entitled to treatment, to fit within the DOC-imposed modality as a prerequisite to obtaining state-mandated sex offender treatment. [SOTMP, IV.F.] Criteria for Treatment: Sex offenders will be accepted into the Sex Offender Treatment and Monitoring Program when they meet the following requirements: 1. The offender must have eight years or less to PED (parole eligibility date).... 2. The offender must admit to sexually abusive behavior.... 3. The offender acknowledges a sufficient willingness to change behaviors related to program goals.... 4. The offender must demonstrate a willingness to participate in group
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treatment.... 5. The offender must comply with the conditions of the group contract. This contract will explain expectations, responsibilities, and termination criteria. 13. Subsection 5 of the above criteria in essence requires that sex offenders enter into a treatment contract as a condition to obtaining therapy, said contract comprising part of the SOTMP modality. 14. The DOC treatment contracts, and in particular Plaintiff's contract, contain(s) provisions, the violation of any one of which constitutes grounds for termination from treatment. Examples are: no contact with minors unless approved in advance (which in Plaintiff's case, discussed infra, includes receipt of an unsolicited letter from a minor); not being in "denial", not watching "sexually provocative" television programs; not listening to music that "supports the sexual abuse cycle"; not "whistling at others"; successful polygraph testing, etc. 15. Plaintiff pled guilty on February 20, 2001, to a sex offense as defined in § 18-3-305 (1), C.R.S., after which he was sentenced to an indeterminate sentence of three years to life in incarceration, and was placed in the custody of the DOC. 16. Plaintiff signed a "Phase I Treatment Contract" on July 20, 2001. He was required by the DOC to sign this contract in order to be eligible for statutorily mandated sex offender treatment. He signed the contract under duress. Plaintiff began participation in the treatment program on or about September 20, 2001. 17. On or about May 15, 2002, Plaintiff's participation in treatment was terminated for allegedly receiving mail from an under-aged female in violation of the Phase I Treatment Contract provision that he was not to have contact with a minor. (Plaintiff was not provided a due process hearing, which is the subject of litigation before this U.S. District Court in Civil
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Action No. 02-cv-1993-WYD-BNB, referred to herein as the "first case".) 18. Plaintiff is entitled to treatment under §§ 18-1.3-1004 (3) and 16-11.7-105(1), C.R.S., without having to meet the above DOC­imposed modality. The decisions in Beebe, supra at 1017, and Leamer v. Fauver, 288 F.3d 532, 545 (3rd Cir. 2002), establish that Plaintiff and other sex offenders entitled to treatment under such statutes have a cognizable Fourteenth Amendment substantive due process liberty interest in said treatment, not conditioned on the inmate's ability to fit into a particular DOC-imposed modality. 19. As of the date of filing this Civil Complaint, Plaintiff has not been reinstated into treatment. He has made it clear to the DOC that he wants to be reinstated into treatment and that he is not refusing treatment ­ see "first case". 20. In the "first case", Plaintiff has claimed violation of his Fourteenth Amendment substantive and procedural due process rights, and the Court, in its interim decision in Beebe, supra at 1017, has found that a liberty interest is implicated under the subject Colorado statutes mandating sex offender treatment. 21. In this "second case", Plaintiff attacks the underlying SOTMP section IV.F. "Criteria for Treatment" which establishes the unlawful DOC modality, namely prerequisites to obtaining treatment and the contract termination provisions as stated above. 22. The Regulation, including its contract modality, was issued by the DOC without statutory authority and contrary to and inconsistent with the above statutes mandating sex offender treatment. 23. Section IV.F. "Criteria for Treatment" of SOTMP, including its referenced contract modality, is facially and as applied to Plaintiff in violation of the U.S. Constitution Fourteenth Amendment substantive due process liberty interest in said statutorily mandated sex offender
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treatment, which entitlement is not to be conditioned upon the inmate fitting into a particular DOC-imposed modality. The DOC criteria on its face limits sex offender treatment just to those offenders who comply with the DOC criteria, and in Plaintiff's case application of that unlawful criteria has denied and continues to deny Mr. Beebe the treatment that he is entitled to under Colorado law, in violation of his liberty interest in said treatment as protected by the Fourteenth Amendment to the U.S. Constitution. WHEREFORE, Plaintiff prays for this Court to declare section IV.F. "Criteria for Treatment" of SOTMP and the treatment contracts referenced therein null and void for the above-stated reasons, to reinstate Plaintiff into sex offender treatment, and for such other and further relief as the Court deems just. Dated this 2nd day of September, 2005. 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. 656 Marion St., Suite 1 Denver, CO 80218 ATTORNEYS FOR PLAINTIFF

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