Opinion
Civil Action No. 99-cv-308-WDM-PAC.
September 30, 2005
ORDER ON RECOMMENDATION OF MAGISTRATE JUDGE
This matter is before me on the recommendation of Magistrate Judge Patricia A. Coan, issued September 8, 2005, that defendants' motion for summary judgment be denied. Defendants filed a timely objection to the recommendation. 28 U.S.C. § 636(b).
I have reviewed de novo the pertinent portions of the record in this case, including the parties' filings on the motion for summary judgment, the recommendation, and the objection. For the reasons that follow, I conclude the recommendation should be accepted.
Defendants object to the recommendation that defendant Linda Fischer be denied qualified immunity on plaintiff's remaining due process claim. They assert that the law the Tenth Circuit relied on to conclude that the requirement that plaintiff register as a sex offender implicated a liberty interest was not clearly established at the time of Fischer's actions in 1995. While the Tenth Circuit did look to post-1995 decisions in its analysis, its holding was based on the Supreme Court's 1976 decision in Paul v. Davis, 424 U.S. 693 (1976), setting forth the "stigma plus" standard. Gwinn v. Awmiller, 354 F.3d 1211, 1224 (10th Cir. 2004) (finding plaintiff's allegations meet the "stigma plus" standard). This law was clearly established in 1995.
Defendants also contend that there was no clearly established law in 1995 indicating what type of process Gwinn was entitled to. They point out that the Tenth Circuit left this question to be resolved upon remand. 354 F.3d at 1224 n. 8. While the particulars of the process may yet be unresolved, it was clearly established in 1995 that, given the implication of a liberty interest, some process was due.
Accordingly, it is ordered:
1. The recommendation of Magistrate Judge Coan, issued September 8, 2005, is accepted.
2. Defendants' motion for summary judgment, filed February 4, 2005 (Docket No. 138) is denied.