Opinion
Civil Action 21-cv-03316-CMA-KLM
02-15-2023
HUNTER ADAM MELNICK, Plaintiff, v. SARAH MARLOW, Director of RSA, Inc., TONYA GAMBLIN, CPO, ELISE PATE, Therapist of RSA, Inc., NATHANYA AHAMED, Clinical Director of RSA, Inc., THERESA MITCHELL, CPO of DOC, MELISSA LAWRENCE, CTL of DOC, JANE DOE, CPO of DOC, HALL, CPO of DOC, and HARDGROVE, CPO of DOC Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on the Parole Defendants' Motion to Dismiss Amended Prisoner Complaint (ECF No. 13) Pursuant to Fed.R.Civ.P. 12(b)(6) [#48](“Motion to Dismiss”). Pursuant to 28 U.S.C. § 636(b) and D.C.COLO.L.CivR 72.1(c), the Motion to Dismiss [#48] has been referred to the undersigned for a recommendation regarding disposition. [#52]. The Court has reviewed the Motion [#48], the Response [#54], the Reply [#60], the case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Court recommends that the Motion [#48] be granted in part and denied in part.
”[#48]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
The Parole Defendants include Defendants Gamblin, Mitchell, Hall, Hardgrove, and Lawrence.
Plaintiff's initial Response [#54] was only one page long and appeared to be incomplete. See id.; see also Reply [#60] at 2. Accordingly, Plaintiff was given leave to refile the Response by February 9, 2023. See Minute Order [#80]. Plaintiff did not file a more complete Response or any other document in response to that Minute Order [#80]. Accordingly, the Court finds it appropriate to rule at this time. See D.C.COLO.LCivR 7.1(d) (“Nothing in this rule precludes a judicial officer from ruling on a motion at any time after it is filed.”). In so finding, the Court notes that Plaintiff is not prejudiced in any way by the lack of a complete Response. The Court has recommended that the Motion to Dismiss [#48] be denied in part, and to the extent it recommends granting the Motion, it recommends dismissal without prejudice with leave to amend, as discussed in Sections IV and V, infra.
I. Background
Plaintiff is a pro se prisoner in the custody of the Colorado Department of Corrections. Plaintiff, who identifies as female, filed this suit pursuant to 42 U.S.C. § 1983 alleging that employees of the Colorado Division of Adult Parole, Washington County, and RSA, Inc. (a provider of rehabilitative services for paroled sex offenders) violated her constitutional rights. The allegations against the Parole Defendants appear to arise from the alleged September 2020 search of Plaintiff's home and property while she was under parole supervision. See, e.g., Amended Complaint [#13].
The Court must construe liberally the filings of a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-521 (1972). In doing so, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, a pro se litigant must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
The Washington County Defendants have since been dismissed. See Order [#79].
Upon initial screening of the Amended Complaint [#13] pursuant to 28 U.S.C. §' 1915 and 1915A, Magistrate Judge Gordon P. Gallagher issued a recommendation to dismiss the majority of the purported claims against the various groups of Defendants. See Recommendation of United States Magistrate Judge (“Recommendation”) [#17], which was adopted by District Judge Lewis T. Babcock. Order [#19]. The official capacity claims were also dismissed. Id. Plaintiff was permitted only to pursue claims against the Parole Defendants in their individual capacities for monetary relief, and those claims are limited to the First Amendment retaliation claim in Claim One (against all the Parole Defendants) and the retaliation, familial association, and First Amendment free speech and association claims in Claim Three (against Mitchell and Gamblin). Id.
All well-pled facts from the Amended Complaint [#13] are accepted as true and viewed in the light most favorable to Plaintiff as the nonmovant. Barnes v. Harris, 783 F.3d 1185, 1191-92 (10th Cir. 2015). Each of Plaintiff's claims assert multiple constitutional violations, are rambling, and are difficult to decipher as to what she is alleging as to each violation. The Court discusses only what appear to be the most pertinent facts relevant to the claims at issue, but has considered all the facts.
Plaintiff alleges in Claim One that in September 2020, during a search of her residence, the Parole Defendants confiscated two mobile phones as well as legal documents pertaining to another one of her current litigation matters against CDOC personnel - Melnick v. Lawrence, Case No. 19-cv-01550-CMA-KLM. These items were allegedly confiscated in retaliation for her filing that case and another case -Melnick v. Raemisch, Case No. 19-cv-00154-CMA-KLM, and to harass Plaintiff and disrupt access to the Court. Id. Defendant Lawrence is a defendant in the Melnick v. Lawrence case. Id. According to Plaintiff, during the search Mitchell reviewed the documents pertaining to Melnick v. Lawrence and asked Plaintiff questions about it. Id. Plaintiff alleges that these documents were confiscated and later destroyed. Id. at 8-9. Plaintiff also alleges that Defendant Gamblin confiscated her flip-phone while Plaintiff was “attempting to record the search in progress.” Id. The flip-phone and a smart phone were among the items later destroyed. Id. at 9.
In Claim Three, Plaintiff alleges that Defendants Mitchell and Gamblin “conspired” with the RSA Defendants to violate her rights to familial association and free speech and engaged in unconstitutional retaliation for maintaining the Melnick v. Lawrence case by prohibiting her from using social media and otherwise placing significant restrictions on her internet usage. Am. Compl. [#13] at 12-13. Specifically, Plaintiff alleges that Defendant Mitchell instructed her to engage in more “pro-social life activities," so she began to use the internet to find MeetUp groups to learn about computer programming. Id. According to Plaintiff, she was then subjected to a polygraph test by the RSA Defendants, apparently in response to her unauthorized use of the internet. Id. Plaintiff claims that Defendant Gamblin told her not to contact the monitoring company, trying to mitigate Plaintiff's access to corroborative information to defend her legal position. Id. at 13.
Gamblin also wrote an email stating that Plaintiff could not use a computer for any purpose except to seek employment, speak with her wife, and engage in sex offender treatment, and the Parole Defendants “permanently banned Plaintiff from using the internet in all sorts of different ways” as outlined by Plaintiff. Id. If Plaintiff used the internet in an unauthorized way, she avers she would risk termination of treatment or parole. Id. Plaintiff asked Mitchell if she could use social media, and was told that she could never use such media, even for work. Id. at 14. In addition, Plaintiff contends that Gamblin ordered her to write down the URL of every website she visited in a Microsoft Excel spreadsheet, further trying to slow down and discourage Plaintiff's use of the internet. Id. at 13. These actions only occurred after the Parole Defendants found out about the lawsuits. Id.
Plaintiff also asserts that Defendant Gamblin's restrictions on her internet use were a violation of her right to free association and/or familial association under the First and Fourteenth Amendments. Am. Compl. [#13] at 13-15, 17, 19. Plaintiff claims that as a result of the restrictions on internet use, she could not use the internet to contact family, including her wife. Id. Further, Plaintiff claims that Gamblin began monitoring Plaintiff's telephone calls with her wife in retaliation for the filing of a lawsuit and to try to obtain information to terminate Plaintiff from treatment. Id. at 14, 16. According to Plaintiff, Gamblin “was intruding in the same familial association as alleged in Melnick v. Lawrence] for no other reason than retaliatory and harassment purposes.” Id.
Finally, Plaintiff claims that she applied with written safety plans to go to the Denver public library, which application was denied. Plaintiff was told by Gamblin and Mitchell that she could not go anywhere near downtown because 16th Street was considered a “mall” and was prohibited as a part of probation Am. Compl. [#13] at 15. Plaintiff avers that this denied her meaningful access to work, educational, and recreational activities. Id. Further, Plaintiff avers that safety plans to do activities with her wife were denied, and Plaintiff was not permitted to have her wife live with her. Id.
III. Standard of Review
A. Federal Rule of Civil Procedure 12(b)(6)
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true." Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994); Fed.R.Civ.P. 12(b)(6) (stating that a complaint may be dismissed for “failure to state a claim upon which relief can be granted"). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999) (citation omitted). To withstand a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain enough allegations of fact 'to state a claim to relief that is plausible on its face.'” Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550 U.S. 544, 570 (2007)); see also Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir. 2007) (“The complaint must plead sufficient facts, taken as true, to provide 'plausible grounds' that discovery will reveal evidence to support the plaintiff's allegations." (quoting Twombly, 550 U.S. at 570)).
“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (brackets in original; internal quotation marks omitted).
To survive a motion to dismiss pursuant to Rule 12(b)(6), the factual allegations in the complaint “must be enough to raise a right to relief above the speculative level." Christy Sports, LLC v. Deer Valley Resort Co., 555 F.3d 1188, 1191 (10th Cir. 2009). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," a factual allegation has been stated, “but it has not show[n] that the pleader is entitled to relief," as required by Fed.R.Civ.P. 8(a). Iqbal, 552 U.S. at 679 (second brackets added; citation and internal quotation marks omitted).
B. Qualified Immunity
Qualified immunity, in certain circumstances, protects government officials from litigation when they are sued in their individual capacities for monetary damages. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 814-18 (1982) (“[G]overnment officials . . . generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”). A government official is entitled to qualified immunity from liability for civil damages when his or her allegedly unlawful conduct did not violate any of the plaintiff's statutory or constitutional rights that (1) were “clearly established” at the time of the conduct, and (2) would have been known to a reasonable person in the official's position. Harlow, 457 U.S. at 818; see also Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that although qualified immunity determination involves a two-part inquiry, if the plaintiff fails either inquiry reviewed in any order, no further analysis need be undertaken and qualified immunity is appropriate).
IV. Analysis
A. Claim One
To state a First Amendment retaliation claim, a plaintiff must allege that: (1) she was engaged in constitutionally protected activity; (2) the defendant took actions that caused the plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity; and (3) the adverse actions were substantially motivated as a response to the plaintiff's exercise of constitutionally protected conduct. See Shero v. City of Grove, Okla., 510 F.3d 1196, 1203 (10th Cir. 2007); see also Banks v. Katzenmeyer, 645 Fed.Appx. 770, 772 (10th Cir. 2016). A plaintiff is required to allege specific facts showing that but for the retaliatory motive, the adverse incidents in question would not have taken place. Smith v. Maschner, 899 F.2d 940, 949-50 (10th Cir. 1990).
Turning to the analysis, the Court assumes for purposes of the Motion to Dismiss [#48],, as did the Parole Defendants, that the first two elements are met. The Parole Defendants argue, however, that Plaintiff has not shown that the third element is met -that Defendants' actions were substantially motivated by Plaintiff's lawsuits. Mot. Dismiss [#48] Id. at 7. The Court agrees with the Parole Defendants that the third element is not met.
Thus, Plaintiff alleges that her legal documents in another pending case were confiscated during a search of her home and later destroyed, and that her mobile phones were confiscated when she tried to record what was happening. Am. Compl. [#13] at 8-9. Plaintiff avers that this occurred in retaliation for her filing of the Melnick v. Lawrence and Melnick v. Raemisch lawsuits, one of which “Lawrence was actively involved in[,]” and to harass, intimidate, and obstruct Plaintiff's ability to pursue the lawsuits. Id. However, Plaintiff does not offer any factual detail to support her contention that Defendants' actions were linked to her protected activity in connection with the lawsuits; she simply concludes that it was. This is not sufficient. The Tenth Circuit has made clear that it is not enough for a plaintiff to merely say at the pleading stage that some adverse action was taken in retaliation for the exercise of a protected right; instead, she must allege detailed facts sufficient to allow the court to infer it: “Mere allegations of constitutional retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.” Frazier v. Dubois, 922 F.2d 560, 562 n. 1 (10th Cir. 1990) (emphasis added); see also Sherrat v. Utah Dep't of Corrections, 545 Fed.Appx. 744, 747 (10th Cir. 2013) (“[m]ere allegations of retaliation, without more, are insufficient to show a retaliatory motive.”).
Plaintiff acknowledges this in the Amended Complaint [#13], as she states that to establish the causal connection relevant to the third element, “it is insufficient to simply state that certain acts were motivated by a retaliatory animus.” Id. at 22. A plaintiff must “'allege specific facts showing retaliation because of the exercise of the prisoner's constitutional rights.'” Id. (citations omitted). As Plaintiff further acknowledges, retaliation claims are often supported through circumstantial evidence such as temporal proximity, a chronology of events, or suspicious timing, which “may be sufficient to support allegations of retaliation” Id. (quoting Davis v. Hoffman, No. 03-cv-01956-WYD-BNB, 2006 WL 1409433, at *7 (D. Colo. May 18, 2006)).
Here, Plaintiff does not allege that any Parole Defendant other than Lawrence actually knew about the lawsuits before the search of her home. Unless Plaintiff alleges facts to demonstrate that the other Parole Defendants knew about the lawsuit, it is not possible for the lawsuit to have been a motivating factor in their search of Plaintiff's home or the confiscation of her property. Moreover, Plaintiff does not allege any specific facts from which the Court can infer that the confiscation of her property was because of the discovery of the legal papers in Melnick v. Lawrence once the search commenced, as compared to some other reason related to Plaintiff's parole. See Peterson v. Shanks, 149 F.3d 1140, 1144-45 (10th Cir. 1998) (“We conclude that Peterson's allegations of retaliation must fail because he has presented no evidence that the defendants' alleged retaliatory motives were the ‘but for' cause of the defendants' actions.”).
Even as to Defendant Lawrence, Plaintiff does not allege indicia of retaliatory intent of the sort that courts have found sufficient. For example, Plaintiff does not allege facts from which the Court could infer that Lawrence received notice of the suit in close “temporal proximity” to the September 2020 search. In fact, the Melnick v. Lawrence case was filed in May 2019, well over a year before the search. Lauck v. Campbell Cnty., 627 F.3d 805, 815 (10th Cir. 2010) (“We have repeatedly held that one cannot infer causation from temporal proximity alone when the time lapse between the protected activity and the retaliatory act exceeds three months.”); cf. DeSpain v. Uphoff, 229 F.3d 1162 (10th Cir. 2000) (finding that 21-day span between protected activity and alleged retaliatory conduct satisfied “temporal proximity” standard). Moreover, temporal proximity alone between protected activity and a challenged action does not, in itself, demonstrate the causal nexus for a retaliation claim. Mallet v. Law, No. 13-cv-02676-CMA-MJW, 2014 WL 421569, at *3 (D. Colo. 2014) (citing Friedman v. Kennard, 248 Fed.Appx. 918, 922 (10th Cir. 2007) (citing cases) (“Standing alone and without supporting factual allegations, temporal proximity between protected activity and a challenged prison action does not, in itself, demonstrate the causal nexus for a retaliation claim.”). Accordingly, the Court recommends that the retaliation claim against the Parole Defendants in Claim One be dismissed.
The Court also finds that Plaintiff has not adequately shown the personal participation of all the Parole Defendants. While Plaintiff refers to the Parole Defendants as an aggregate group who were allegedly present for the search of her home, and ascribes misconduct to all the Parole Defendants as a collective, the actual retaliatory conduct complained of appears to have been taken only by Defendants Mitchell and Gamblin. Plaintiff did not allege any specific retaliatory actions taken by the other Parole Defendants; namely, Hall, Hardgrove, and Lawrence. As the Motion to Dismiss [#48] highlights, the Tenth Circuit has stressed the need for careful attention to particulars in § 1983 claims, especially in lawsuits involving multiple defendants. Pahls v. Thomas, 718 F.3d 1210, 1225 (10th Cir. 2013). Thus, “it is particularly important” that a plaintiff “make clear exactly who is alleged to have done what to whom, ... as distinguished from collective allegations.” Id. “When various officials have taken different actions with respect to a plaintiff, the plaintiff's facile, passive-voice showing that his rights ‘were violated' will not suffice. Likewise insufficient is a plaintiff's more active-voice yet undifferentiated contention that ‘defendants” infringed his rights.'” Id. at 1225-1226 (citation omitted). In other words, a plaintiff must identify specific actions taken by a particular defendant in order to plead a viable § 1983 claim. Id. at 1226. Plaintiff has not done so with respect to Defendants Hall, Hardgrove, and Lawrence. This is another basis for the dismissal of the claim as to those three Defendants.
Based on the foregoing, the Court finds that Plaintiff has not stated a plausible First Amendment retaliation claim, and that the Motion to Dismiss [#48] should be granted as to this claim. However, rather than grant qualified immunity at this time, it is recommended that this claim be dismissed without prejudice, and that Plaintiff be granted leave to amend the complaint as to the claim. See Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010) (“ordinarily the dismissal of a pro se claim under Rule 12(b)(6) should be without prejudice, and a careful judge will explain the pleading's deficiencies so that a prisoner with a meritorious claim can then submit an adequate complaint”); Gabriel v. Emergency Med. Specialists, P.C., No. 16-cv-00051-RBJ-CBS, 2016 WL 8310097, at *8 n. 13 (D. Colo. Nov. 1, 2016) (“Given the heightened concerns that govern pro se litigation, ‘ordinarily the dismissal of a pro se claim should be without prejudice'”) (citation omitted). The Court cannot find at this stage of the litigation that amendment would be futile. See Garcia v. Webster, No. 09-cv-03024-CMA-KLM, 2011 WL 109076, at *1 (D. Colo. Jan. 11, 2011) (“dismissal [with prejudice] of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend”).
B. Claim Three
1. The Retaliation Claim
Defendants argue that the retaliation claim asserted in Claim Three must be dismissed for the same reason, i.e., that Plaintiff has not sufficiently alleged that the adverse actions related to Plaintiff's use of the internet were substantially motivated as a response to her exercise of constitutionally protected conduct. The Court again agrees with the Parole Defendants.
Plaintiff merely alleges in a conclusory manner that because the most severe restrictions on her internet use and/or attempts to communicate with others were imposed after she filed the Melnick v. Lawrence lawsuit, the imposition of those restrictions must be a retaliatory attempt to dissuade her from continuing with that suit. Mot. Dismiss [#48] at 10. The Court finds that these allegations are insufficient to satisfy the “but-for” requirement of a retaliation claim for substantially the same reasons addressed in Claim One. Plaintiff has not alleged facts from which the Court can infer that the adverse actions at issue in connection with the internet were taken in retaliation for the exercise of a protected right related to Plaintiff's lawsuit, as compared to a valid parole condition. See Frazier, 922 F.2d at 562 n. 1. For example, while Plaintiff alleges that the retaliatory actions were taken after Defendants found about the lawsuit, she does not allege any facts by which the Court could infer a causal connection, such as temporal proximity.
Based on the foregoing, it is recommended that the Motion to Dismiss [#48] be granted as to this claim, and that the claim be dismissed. However, the Court again recommends that this claim be dismissed without prejudice and that Plaintiff be granted leave to amend this claim, as the Court cannot conclude at this time that amendment would be futile.
2. The Familial Association Claim
The Parole Defendants next argue that Plaintiff has failed to plausibly allege that they intended to deprive her of a familial relationship. Mot. Dismiss [#48] at 11. It is argued in that regard that while Plaintiff alleged that she was denied the right to communicate with her wife over the internet, Plaintiff did not allege that she was denied the right to communicate with her wife through other means. Id. Accordingly, the Parole Defendants assert that Plaintiff does not state a plausible familial association claim. Id.
Turning to the analysis, the right to familial association has long been recognized as a “subset” of the freedom of intimate association. See Griffin v. Strong, 983 F.2d 1544, 1547 (10th Cir. 1993). It is based on the “concept of liberty in the Fourteenth Amendment,” and grounded in substantive due process. Id. (quotation omitted). This right has been held to extend to the relationship between an inmate and his or her spouse. See, e.g., Muniz-Savage v. Addison, 647 Fed.Appx. 899, 905-06 (10th Cir. 2016). To state a claim for the deprivation of the right of familial association, a plaintiff must allege that (1) the defendants intended to deprive him of a protected relationship; and (2) balancing this interest in the plaintiff's protected relationship against the state's interests in protecting their health and safety, the defendants either unduly burdened plaintiff's relationship or effected an “unwarranted intrusion” into that relationship. Thomas v. Kaven, 765 F.3d 1183, 1196 (10th Cir. 2014).
Here, Plaintiff's familial association claim is broader than what is claimed by the Parole Defendants. In addition to alleging that the Parole Defendants barred Plaintiff from communicating with her wife and family over the internet, Plaintiff asserts that her telephone calls with her wife were monitored, that her wife was not permitted to live with her while she was on parole, and she was not permitted to do various activities with her wife. Am. Compl. [#13] at 13-15, 17, 19. The Court finds that Defendants have not addressed these additional allegations or whether they satisfy the requirement that Plaintiff show that Defendants intended to deprive her of a protected relationship. Thomas, 765 F.3d at 1183. In addition, Defendants did not address whether in balancing the interest in Plaintiff's protected relationship against the state's interests in protecting their health and safety, the allegations could satisfy the requirement that Defendants either unduly burdened Plaintiff's relationship or effected an “unwarranted intrusion” into that relationship. Id. Construing the facts in the light most favorable to Plaintiffs, and making all reasonable inferences in her favor, the Court finds that Plaintiff's allegations may satisfy those requirements, and that the Court does not have sufficient information to dismiss this claim.
Based on the foregoing, it is recommended that the Motion to Dismiss [#48] as to this claim be denied.
3. First Amendment Speech/Assembly Claim
Finally, the Parole Defendants argue that Plaintiff has not plausibly pled a free association claim as to the restrictions on her internet and/or social media use. Mot. Dismiss [#48] at 12-13. A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen[.]” Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017). ”The Court has sought to protect the right to speak in this spatial context.” Id. Thus, “:a street or a park is a quintessential forum for the exercise of First Amendment rights. “ As the Supreme Court noted, “these places are still essential venues for public gatherings to celebrate some views, to protest others, or simply to learn and inquire.” ! Id. !! The internet, and social media in particular, is also such a “place.” Id..at 1735, 1738. As explained in Packingham:
Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.”. . . .On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of Congress have set up accounts for this purpose. . . .In short, social media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.”Id. at 1735-36 (internal quotations omitted). Accordingly, the Packingham Court held unconstitutional a North Carolina statute that made it unlawful for a registered sex offender to access social media. Id.
Nonetheless, “[p]arolees do not enjoy the absolute liberty to which every citizen is entitled, but only . . . conditional liberty properly dependent on observance of special parole restrictions....These restrictions are designed to ensure rehabilitation and protect the public.” United States v. Lewis, 71 F.3d 358, 361 (1995) (quotations and citations omitted). The Tenth Circuit, like other courts, has recognized that parole conditions may infringe on otherwise constitutionally protected liberties if the restrictions are reasonably related to the purposes of parole. See United States v. Turner, 44 F.3d 900, 903 (10th Cir. 1995); United States v. Payne,181 F.3d 781 (6th Cir. 1999).
While Plaintiff is not completely prohibited from using the internet, she avers that she is prohibited from using social media. See Am. Compl. [#13] at 13-15. The Parole Defendants appear to contest this, and argue that Packingham does not require “unfettered access to social media.” Mot. Dismiss [#48] at 12-13. However, the Court must accept Plaintiff's allegations as to a complete prohibition on her ability to use social media as true under Rule 12(b)(6). This complete prohibition would appear to violate the Supreme Court's proscription in Packingham. See id., 137 S.Ct. at 1737 (“to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights”). ! ! Accordingly, it is recommended that the Motion to Dismiss [#48] be denied as to this portion of the free speech/free association claim.
Plaintiff also avers that the Parole Defendants placed significant restrictions on her internet usage, informing Plaintiff that she could not use a computer for any purpose except to seek employment, speak with her wife, and engage in sex offender treatment. Id. at 12-13. Plaintiff also avers that the Parole Defendants “permanently banned Plaintiff from using the internet in all sorts of different ways, including for religious reasons, recreational reasons, educational reasons, social media, news, gaming, contacting any press or government officials, and communicating with family and friends.” Id. at 13. If Plaintiff used the internet in an unauthorized way, she avers that she would risk termination of treatment or her parole. Id. In addition, Plaintiff contends that Defendant Gamblin ordered her to write down the URL of every website she visited in a Microsoft Excel spreadsheet, to slow down and discourage Plaintiff from using the internet. Id.
As discussed previously, Plaintiff also states that she was told she could not use the internet to contact family, including her wife.
The Parole Defendants argue that Plaintiff's free association claim regarding the limits on the internet is not plausible because Plaintiff's own allegations show that she is allowed to use the internet for numerous purposes that appear conducive to her parole supervision (see Amended Complaint [#13] at 13), and that Plaintiff has failed to explain how the alleged restrictions on her internet use are not reasonably related to her parole supervision. Mot. Dismiss [#48] at 13 (citing United States v. Turner, 44 F.3d 900, 903 (10th.Cir. 1995)). Turner held that “incidental restrictions of First Amendment rights to freedom of speech and association are permissible if reasonably necessary to accomplish the essential needs of the state and public order.” Id. Thus, Turner stated that “[c]ourts have consistently upheld imposition of conditions of probation that restrict a defendant's freedom of speech and association when those conditions bear a reasonable relationship to the goals of probation.” Id.
In Turner, the probation condition at issue was that Turner not “harass, intimidate or picket in front of any gynecological or abortion family planning services center.” 44 F.3d at 903. This condition was imposed after Plaintiff, who had “deeply held convictions about abortion,” was convicted of a criminal charge related to her activity in scaling a fence surrounding a women's health care clinic with other protesters, and entering the clinic in order to pray and place her body in front of a woman who was attempting to enter the clinic. Id. at 901. The plaintiff alleged that the district court erred in imposing this condition because it “amounts to a prior restraint in violation of her First Amendment liberties.” Id. ! ! In rejecting this argument, the Tenth Circuit found that there was “no question here but that the conditions imposed on Ms. Turner bear a reasonable relationship to the goal of her probation. Id. at 903.
Thus, given Turner's beliefs, the Tenth Circuit found “it is not fantastic to speculate that if she were permitted to protest at abortion clinics, she might not be able to restrict her activities within lawful parameters”, and that “[i]n order to help insure Ms. Turner does not repeat her criminal conduct, the district court did not abuse its discretion by imposing this condition as a term of her probation. Id. !
The Court finds that is not the situation here. The Court fails to see how precluding Plaintiff's internet usage for any activities except seeking employment, talking to her wife (if that is in fact permitted via internet, which is not clear from the Amended Complaint [#13]), or engaging in sex offender treatment bears a reasonable relationship to the goals of probation. According to Plaintiff, she is precluded from using the internet even for religious or educational reasons, or just more broadly to obtain information about the world. The Court can reasonably infer from Plaintiff's allegations that these broad restrictions may not bear a reasonable relationship to the goal of probation, and the Parole Defendants have not shown to the contrary, or even addressed the issue. The Court notes that the Supreme Court in Packingham found it “unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.” Id. at 1737. The Packingham Court stated that “[e]ven convicted criminals—and in some instances especially convicted criminals—might receive legitimate benefits from these means for access to the world of ideas, in particular if they seek to reform and to pursue lawful and rewarding lives.” Id. Based on the foregoing, this Court is not satisfied that the “limited exceptions' for Plaintiff's use of the interest “satisfy the concerns about access to the ‘vast democratic forums of the internet” for a multiplicity of purposes that was the basis for the Supreme Court's decision'” in Packingham. Yunus v. Robinson, 17-cv-5839 (AJN), 2019 WL 168544, at *16 (S.D.N.Y Jan. 11, 2019) (quoting Packingham,137 S.Ct. at 1735-37) (internal quotation marks omitted)). !
Similarly, the Yunus court was not persuaded by the defendants' objection that Packingham was distinguishable because the plaintiff's parole conditions regarding the internet were not absolute. Id.
Accordingly, the Court recommends that the Motion to Dismiss [#48] be denied as to the free speech/association claim under the First Amendment. As further support for the recommendation to deny this claim, Plaintiff's claim is broader than asserted by the Parole Defendants. Plaintiff thus alleges that she is also barred from going to the Denver public library, anywhere near downtown because 16th Street is considered a mall, and from engaging in various recreational activities with her wife. Am. Compl. [#13] at 15. The Motion to Dismiss [#48] did not address these allegations, or how they impact the holding in Packingham that denial of access to streets, parks, or other such public locations may violate the First Amendment. Id., 127 S.Ct. at 1735.
IV. Conclusion
Based upon the foregoing,
IT IS HEREBY RECOMMENDED that the Parole Defendants' Motion to Dismiss [#48] be GRANTED IN PART AND DENIED IN PART. Specifically, it is recommended that the Motion to Dismiss [#48] be GRANTED as to the retaliation claims asserted against the Parole Defendants in Claims One and Three. It is further recommended that the Motion to Dismiss [#48] be DENIED as to the familial association claim and the free speech/assembly claim in Count Three.
IT IS FURTHER RECOMMENDED that as to the retaliation claims the Court has recommended be dismissed, these claims be DISMISSED WITHOUT PREJUDICE, and that Plaintiff be given leave to amend as to these claims through a Second Amended Complaint. The Second Amended Complaint should clarify Plaintiff's claims (including those previously dismissed without prejudice by Order [#19] of May 6, 2022), delete Defendants that have been dismissed, and delete claims that have been dismissed (as well as factual allegations in support of those claims).
IT IS FURTHER ORDERED that pursuant to Fed.R.Civ.P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed.R.Civ.P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corrs., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).