Martinez v. Quinn

GLENICE MARTINEZ, Plaintiff, v. JAMES QUINN, in his personal and official capacities,PEGGY HEIL, in her personal and official capacities,THE ESTATE OF TOM CLEMENTS, LISA CLEMENTS,as the personal representative of the Estate of Tom Clements, and ROGER WERHOLTZ,Acting Executive Director of the Department of Corrections, in his official capacity, Defendants.

Civil Action No. 13-cv-00400-PAB-MEH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

DATED: March 17, 2014

Judge Philip A. Brimmer

ORDER

This matter is before the Court on the Motion to Dismiss Second Amended Complaint (Doc. #29) [Docket No. 31] filed by defendants James Quinn, Peggy Heil, the Estate of Tom Clements, Lisa Clements, and Roger Werholtz. Defendants move to dismiss the second amended complaint [Docket No. 29] filed by plaintiff Glenice Martinez pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

I. BACKGROUND

For the purposes of ruling on this motion, the Court assumes the truth of the following allegations, as set forth by plaintiff in her second amended complaint. See Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1215 (10th Cir. 2007) ("We must accept all the well-pleaded allegations of the complaint as true and must construe them in thelight most favorable to the plaintiff.") (citation omitted). Plaintiff is a paralegal who has worked on a contract basis with attorney John Pineau for the past several years. Docket No. 29 at 2, ¶ 3. Mr. Pineau was lead plaintiff's counsel in a class action lawsuit that the Court dismissed on March 13, 2013. Allen v. Clements, 11-cv-03396-PAB-MEH, 2013 WL 980176 (D. Colo. Mar. 13, 2013). The lead defendant in the case was Tom Clements, the former Executive Director of the Colorado Department of Corrections ("CDOC"), and the case challenged the constitutionality of the CDOC's treatment program for incarcerated sex offenders. See id. Plaintiff also engages in lobbying and political activities related to prisoners' rights, including testifying before state house and senate committees, for which she is not compensated. Docket No. 29 at 3, ¶ 3.

Defendant James Quinn is an Assistant Attorney General for the State of Colorado. Docket No. 29 at 3, ¶ 4. Defendant Roger Werholtz is the interim Executive Director of the CDOC. Docket No. 29 at 4, ¶ 5. Defendant Peggy Heil is the Chief of Behavioral Health for the CDOC. Docket No. 29 at 4, ¶ 6. Defendant Lisa Clements is the widow of Tom Clements and the personal representative of his estate. Docket No. 29 at 4, ¶ 5.

Citizens United for Rehabilitation of Errants ("CURE") is a national advocacy organization dedicated to criminal justice reform. Docket No. 29 at 4, ¶ 7. Its Colorado chapter is headed by Dianne Tramutola-Lawson. Id. The Center for Effective Public Policy ("CEPP") is a public advocacy group dedicated to helping public entities surmount challenges faced by criminal justice professionals. Docket No. 29 at 5-6, ¶ 8. The Community Treatment and Housing Lean Project ("CTHLP") is a Coloradointeragency program dedicated to helping offenders who are released from CDOC and are homeless, unemployed, or mentally ill. Docket No. 29 at 6-7, ¶ 10.

On February 12-15, 2013, CTHLP held a public meeting called a Rapid Improvement Event ("RIE") at the CDOC Adult Parole and Community Corrections Office in Denver. Docket No. 29 at 7, ¶ 10. The event was intended to "develop an interdepartmental case plan" for high risk offenders to ensure appropriate delivery of services and access to resources prior to their release. Id. The event was co-sponsored by CEPP (which is not a governmental agency), facilitated by a CEPP employee and a CDOC employee, coordinated by Renae Jordan, an employee of Tom Clements, and attended by officers and employees of CDOC and the Colorado Department of Human Services ("CDHS"), as well as members of the general public, including members of CURE. Id. at 7, 9, ¶ 10, 14. The RIE agenda did not include treatment programs for incarcerated sex offenders. Docket No. 29 at 7-8, ¶ 10.

On December 13, 2012, Julie Wands, a CDOC employee and co-facilitator of the RIE, sent an email inviting Ms. Tramutola-Lawson to the RIE. Docket No. 29 at 8, ¶ 11. Ms. Tramutola-Lawson could not attend the event and suggested that plaintiff attend in her stead. Id. at ¶ 12. Ms. Jordan then sent plaintiff an invitation to the RIE. Id. at ¶ 13.

Plaintiff attended the first day of the RIE and sat next to Ms. Heil. Docket No. 29 at 9, ¶ 15. No issues related to Allen v. Clements were discussed that day. Id. Plaintiff took notes at the event and intended to participate in the public policy debate. Docket No. 29 at 10, ¶ 15. Ms. Heil was upset by plaintiff's presence, complained to Mr. Clements about it, and demanded plaintiff be removed from the RIE. Id. at ¶ 16. Ms.Heil acted with the intent of preventing plaintiff from expressing her opinions or engaging in discussion at the RIE. Id.

The Colorado Attorney General's office sets policy for attendance at events like the RIE. Docket No. 29 at 10, ¶ 17. Mr. Quinn was responsible for deciding that plaintiff should be removed from the RIE. Id. Mr. Quinn communicated his decision to Mr. Clements and to Ms. Heil. Id. Mr. Clements approached plaintiff and stated that the Attorney General's office was "concerned" about her presence at the RIE because she "works for" the attorney suing them in a class action lawsuit. Docket No. 29 at 11, ¶ 18. Plaintiff understood Mr. Clements' statements to mean that, if she did not leave the RIE immediately, she would be trespassing. Id. Plaintiff left against her will because she did not want to be arrested or cause a disturbance. Id.

Plaintiff brought this case on February 14, 2013, alleging violations of the First and Fourteenth Amendments to the United States Constitution. Docket No. 1; Docket No. 29 at 12. Plaintiff seeks declaratory relief and nominal damages from Ms. Heil and Mr. Quinn in their personal and official capacities; from Mr. Werholtz in his official capacity; and from the Estate of Tom Clements. Docket No. 29 at 12.

II. STANDARD OF REVIEW

The Court's function on a Rule 12(b)(6) motion for failure to state a claim upon which relief can be granted is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is sufficient to plausibly state a claim. Fed. R. Civ. P. 12(b)(6); Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In doing so, the Court "must accept allthe well-pleaded allegations of the complaint as true and must construe them in the light most favorable to the plaintiff." Alvarado, 493 F.3d at 1215 (quotation marks and citation omitted).

The "plausibility" standard requires that relief must plausibly follow from the facts alleged, not that the facts themselves be plausible. Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008). However, "where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not shown—that the pleader is entitled to relief." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (internal quotation marks and alteration marks omitted).

III. ANALYSIS

Plaintiff alleges that defendants violated her First Amendment rights to free speech and association by asking her to leave the RIE. Docket No. 29 at 13, ¶ 21. Defendants respond that the actions alleged do not constitute a violation of the First Amendment. Docket No. 31.

The First Amendment conditions a government's ability to regulate speech on government or public property on the character of the space in which it seeks to implement such regulation. Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983). This general rule is embodied in a well established forum analysis, according to which the government's leeway in regulating speech is sharply curtailed in spaces traditionally open to public discourse and somewhat broader in spaces that are available for only limited discussion. See id. at 45-46. The First Amendment does not, however, protect an individual's right to participate directly in the policy-making process.See generally Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 (1984). While the government may not curtail an individual's freedom to speak her mind on matters of policy, it need not guarantee the "right to attend a private, special purpose" meeting. Ronald D. Rotunda & John E. Nowak, 5 Treatise on Const. L. § 20.52(c) (2014). The First Amendment is applicable to the states by virtue of the Fourteenth Amendment. Perry, 460 U.S. at 44.

In Minnesota State Bd. for Community Colleges v. Knight, the Supreme Court upheld a Minnesota law preventing anyone other than the designated union representative from meeting with public employers to discuss policy decisions against a First Amendment challenge brought by community college faculty members. The Court declined to apply the classic forum analysis to what it construed as a claim asserting a right "to force officers of the state acting in an official policymaking capacity to listen to [public employees] in a particular formal setting." 465 U.S. at 282-83. The Court held that the Constitution "does not grant to members of the public generally a right to be heard by public bodies making decisions of policy." Id. at 283. It endorsed the current political reality in which "[p]ublic officials at all levels of government daily make policy decisions based only on the advice they decide they need and choose to hear," id. at 284, and cautioned that policymaking would "likely grind to a halt" if it were "constrained by constitutional requirements on whose voices must be heard." Id. at 285. It concluded that nothing in the First Amendment jurisprudence "suggests that the rights to speak, associate, and petition require government policymakers to listen or respond to individuals' communications on public issues." Id.

The Knight court relied...