Melnick v. Camper, Civil Action No. 18-cv-02885-CMA-KLM

487 F.Supp.3d 1039

Hunter Adam MELNICK, Plaintiff,

v.John CAMPER, Director of Colorado Bureau of Investigation, in his official capacity, Defendant.

Civil Action No. 18-cv-02885-CMA-KLM

United States District Court, D. Colorado.

Signed September 18, 2020

Hunter Adam Melnick, Akron, CO, pro se.

Joshua G. Urquhart, Karen Elizabeth Lorenz, Colorado Department of Law, Denver, CO, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

CHRISTINE M. ARGUELLO, United States District Judge

This matter is before the Court on Defendant's Fed. R. Civ. Pro. 12(b)(6) Motion to Dismiss ("Motion to Dismiss") (Doc. # 59), wherein Defendant moves this Court to dismiss Plaintiff's complaint for failure to state a claim upon which relief may be granted. The Motion is ripe for the Court's review. See (Doc. ## 59, 62–63). For the reasons that follow, the Court grants the Motion to Dismiss.

I. BACKGROUND

Plaintiff, Mr. Melnick, commenced this action on November 8, 2018. See (Doc. # 1). Plaintiff is proceeding pro se and asserts nine claims contesting the constitutionality of the Colorado Sex Offender Registration Act ("SORA"), Colo. Rev. Stat. § 16-22-101, et seq. See (Doc. # 9).

Plaintiff was convicted in 2009 of Sexual Assault-Overcome Victim's Will, a class 4 felony, in Douglas County, Colorado, Case Number 2005CR426. See (Doc. # 59-1).¹ Plaintiff was also sentenced as a sex offender. (Id. ) Defendant asserts, and Plaintiff does not contest, that Plaintiff was initially released on parole in February 2017. (Doc. # 59 at 2.) As a condition of his parole, and pursuant to SORA, he was required to register as a sex offender upon release. (Id. at 2–3.)

SORA requires a person convicted of unlawful sexual behavior or another offense, the underlying factual basis of which involves unlawful sexual behavior, to register with the state as a sex offender.

Colo. Rev. Stat. § 16-22-103. As explained by the Tenth Circuit in a recent decision, the information obtained pursuant to registration under SORA is available to state and federal criminal justice agencies, and includes the offender's name, registration status, date of birth, and description of the offender's unlawful sexual behavior and crimes. Millard v. Camper , 971 F.3d 1174, 1179 (10th Cir. 2020). SORA also makes some of the registrants’ information available to the public. Id. Upon request, the Colorado Bureau of Information ("CBI") "must issue a list of persons on the Registry" which includes, "at a minimum, the registrant's name and aliases, address, birth date, photograph, and the offense that required him or her to register." Id. The CBI also maintains a public website searchable by name and geographic area. Id. Under SORA, "[s]ome registered sex offenders can petition the court to discontinue registration under certain conditions, ... while certain categories of sex offenders are ineligible for deregistration and must continue to abide by [SORA's] registration requirements for the rest of their lives." Id.²

Plaintiff alleges, among other things, that as a result of the SORA sex offender registration requirement, he has been unable to procure employment or housing in an apartment complex and has been barred from participating in various social media platforms like Facebook and MySpace. See, e.g. , (Doc. # 1). Plaintiff further alleges that his inability to participate in social media deprives him of his ability to communicate with family members. (Id. ) Additionally, Plaintiff asserts that he is required to register online identities (including "chatroom" and email identities), which he contends makes his preferred profession as a web developer difficult or impossible to undertake. (Id. ) Plaintiff seeks a finding that SORA is unconstitutional as applied to him, a permanent injunction prohibiting enforcement of SORA as to him, and a prohibition of dissemination of any information regarding Plaintiff pursuant to SORA. (Id. at 9.)

Defendant contends in the Motion to Dismiss that all of the SORA and/or parole requirements complained about by Plaintiff are permissible conditions of parole. (Doc. # 59 at 1–2.) Defendant asserts that because parole is discretionary under Colorado law, an offender has no right to it. It further argues that if the Colorado Department of Corrections ("CDOC") and the state Parole Board were not required to release Plaintiff on parole at all, they were definitely within their rights to release him subject to certain conditions related to SORA. (Id. ) Second, Defendant contends that many of Plaintiff's claims are predicated, in whole or in part, on the mistaken notion that he is required under SORA to register any online identities. Finally, Defendant argues that each of Plaintiff's nine constitutional theories misunderstands or misconstrues the specific constitutional violation at issue, and that his claims must be dismissed for failure to state a claim.

II. LEGAL STANDARDS

A. PRO SE PLAINTIFF

Plaintiff proceeds pro se. The Court, therefore, reviews his pleading "liberally and hold[s] [it] to a less stringent standard than those drafted by attorneys." Trackwell v. U.S. Government , 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). However, a pro se litigant's "conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based." Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991).

A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. See, e.g. , Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters , 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) ; Whitney v. New Mexico , 113 F.3d 1170, 1173–74 (10th Cir. 1997) (a court may not "supply additional factual allegations to round out a plaintiff's complaint"); Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991) (a court may not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues"). Nor does pro se status entitle a litigant to an application of different rules. See Montoya v. Chao , 296 F.3d 952, 957 (10th Cir. 2002) ; see also Nielsen v. Price , 17 F.3d 1276, 1277 (10th Cir. 1994) (explaining a pro se litigant must follow the same procedural rules that govern other litigants).

B. FED. R. CIV. P. 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). "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." Dubbs v. Head Start, Inc. , 336 F.3d 1194, 1201 (10th Cir. 2003) (citations and quotation marks omitted).

"A court reviewing the sufficiency of a complaint presumes all of [the] plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff." Hull v. Dutton , 935 F.2d 1194, 1198 (11th Cir. 1991). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (emphasis added) (citing Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies "the allegations in the complaint that are not entitled to the assumption of truth," that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679–81, 129 S.Ct. 1937. Second, the Court considers the factual allegations "to determine if they plausibly suggest an entitlement to relief." Id. at 681, 129 S.Ct. 1937. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679, 129 S.Ct. 1937.

However, the Court need not accept conclusory allegations without supporting factual averments. Southern Disposal, Inc. v. Texas Waste , 161 F.3d 1259, 1262 (10th Cir. 1998). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. "Nor does the complaint suffice if it tenders naked assertion[s] devoid of further factual enhancement." Id. (citation omitted). "Where a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Id. (citation omitted).

III. ANALYSIS

A. WHETHER THE CHALLENGED SORA REQUIREMENTS ARE VALID CONDITIONS OF PAROLE

It is undisputed that Plaintiff is currently serving a parole sentence, and the conditions that he complains of at this time are part of the requirements for his release on parole. The United States Supreme Court has held that "[p]arole is a ‘variation on imprisonment of convicted criminals,’ ... in which the State accords a limited degree of freedom in return for the parolee's assurance that he will comply with the often strict terms and conditions of his release." Penn. Bd. of Prob. & Parole v. Scott , 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (quoting Morrissey v. Brewer , 408 U.S. 471, 477, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972) ). The Colorado Board of Parole may impose conditions on parole that it determines to be necessary and that bear a rational connection to the...