Gross v. Samudio , 630 F. App'x 772 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
DALE GROSS,
Plaintiff - Appellant,
v. No. 14-1248
(D.C. No. 1:11-CV-02594-RPM)
GUILLERMO SAMUDIO, Community (D. Colo.)
Parole Officer, in his personal capacity;
ANTHONY YOUNG, Chairman of the
Colorado Parole Board, in his personal
capacity; ED THOMAS, Member of the
Parole Board, in his personal capacity;
DENISE BALAZIC, Member of the Parole
Board, in her personal capacity;
PATRICIA BAN WAAK, Member of the
Parole Board, in her personal capacity;
JOHN O’DELL, Member of the Parole
Board, in his personal capacity; IAN
SWEENEY, Community Parole Officer, in
his personal capacity; JENNIFER
DUNCAN, Community Parole Officer, in
her personal capacity; MICHAEL
ANDERSON, Member of the Parole
Board, in his personal capacity; REBECCA
OAKES, Member of the Parole Board, in
her personal capacity; JOHN DAVIS,
President of RSA, Inc.; JOHN DOES,
Numbers 1-2, unknown officers of RSA,
Inc.; JOHN DOES, Numbers 3-4, unknown
officers of Progressive Therapy Systems,
P.C.; FREDERICK E. TOLSON, President
Sexual Offense Resource Services, LLC;
JOHN DOES, Numbers 5-6, unknown
officers of Sexual Offense Resource
Services, LLC; WALTER T. SIMON,
Ph. D., President of Progressive Therapy
Systems, P.C.;
Defendants - Appellees,
and
GREIG VEEDER, President and Director,
Teaching Humane Existence Treatment
Program, Inc.; JOHN DOES, Numbers 7-8,
unknown officers of Teaching Humane
Existence Treatment Program, Inc.,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
_________________________________
Dale Gross, a former Colorado inmate and parolee, appeals from the district
court’s dismissal of his 42 U.S.C. § 1983 civil rights action against numerous
Colorado state parole officers and members of the Colorado Parole Board (the State
Defendants), and officers of several private entities that provide sex offender
treatment programs in Denver, Colorado, namely John Davis, president of
Redirecting Sexual Aggression, Inc. (RSA); Walter Simon, president of Progressive
Therapy Systems, P.C. (PTS); Frederick E. Tolson, president of Sexual Offense
Resource Services, L.L.C. (SORS); and Greig Veeder, president of Teaching Humane
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Existence Treatment Program, Inc. (THE) (collectively, the Private Defendants).
Gross alleged the parole conditions imposed by the State Defendants relating to the
requirement that he obtain sex offender treatment from one of the Private Defendants
violated his constitutional rights, and that the Private Defendants violated his
constitutional rights by refusing to enroll him in their treatment programs. The
district court dismissed the complaint, ruling Gross failed to show the State
Defendants violated any clearly established constitutional right or that the Private
Defendants were acting under color of state law. We exercise jurisdiction under
28 U.S.C. § 1291 and affirm the dismissal, but on different grounds as to the State
Defendants because the claims against them are time barred.
I. Background
Gross was convicted after a jury trial of first degree criminal trespass, first
degree burglary, retaliation against a witness or victim, second degree assault, third
degree assault, two domestic violence counts, and one crime of violence count.
People v. Gross, 39 P.3d 1279, 1280 (Colo. App. 2001). Based on information in
Gross’s pre-sentence report that he had engaged in sexually violent behavior with his
girlfriend, and following an administrative review hearing, the Colorado Department
of Corrections (DOC) classified Gross as an S–4 sex offender when he entered prison
in 2000. An S-4 sex offender classification applies to inmates who were not
convicted of a sex offense but for whom sex offender treatment has been
recommended. See Chambers v. Colo. Dep’t of Corrs., 205 F.3d 1237, 1240 n.8
(10th Cir. 2000) (describing the S-4 sex offender classification). Colorado law then
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in effect gave the DOC complete discretion to determine an inmate’s sex offender
classification, notwithstanding any contrary prosecution stipulation or court finding.
Colo. Rev. Stat. § 16-22-103(1)(d) (2005); see also Gwinn v. Awmiller, 354 F.3d
1211, 1218-19 (10th Cir. 2004) (holding that an inmate not convicted of a sex offense
may be classified by the DOC as a sex offender if it affords him procedural
protections). Gross filed a § 1983 action challenging his sex offender classification
in 2002, which was dismissed. See Gross v. Colo. Dep’t of Corr., 75 F. App’x 702,
704-05 (10th Cir. 2003) (ruling that Gross received adequate due process in the
classification administrative hearing, and that he did not state a cognizable Equal
Protection or Fifth Amendment violation).
Gross was first released from prison in August 2008, subject to five years of
mandatory parole. He was required as a condition of his parole to enroll in and
“actively participate in” a sex offender treatment program. Aplt. App. at 221.1 The
parole conditions defined “participation” in treatment as including a requirement that
Gross admit responsibility for his offense. Id. Gross alleges in his complaint that it
is impossible to admit responsibility for a sex offense that never took place. Gross
was directed to contact PTS. Gross enrolled, but his PTS therapist terminated him
from treatment in January 2009, because of Gross’s “adversarial presentation in
1
Although this was a term and condition of his parole, Gross was not
statutorily required to participate in sex offender treatment under Colorado’s Sex
Offender Lifetime Supervision Act because he was not convicted of a sex offense.
See Colo. Rev. Stat. § 16-11.7-105 (requiring persons convicted of a sex offense to
undergo appropriate sex offender treatment).
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treatment and his inability to accept responsibility for his offense.” Id. at 317.
Following a hearing, Gross’s parole was revoked in 2009 for failure to submit a urine
test and failure to participate in sex offender treatment.
Gross was again paroled in August 2009. His conditions of parole again
included the requirement that he actively participate in sex offender treatment and
admit responsibility for his offense. Gross was directed to contact SORS, but
according to the parole revocation investigation report, he repeatedly failed to
schedule appointments, was found to be deceptive on a SORS polygraph
examination, and continued to deny any sexually inappropriate behavior. Aplee.
Supp. App. at 97. SORS informed Gross’s parole officer that he was not amenable to
treatment. Gross’s parole officer then referred Gross to RSA. According to the
parole revocation investigation report, Gross failed to schedule his required
appointments with RSA or to comply with RSA’s treatment directives, and was found
to have been deceptive on an RSA polygraph examination. Gross sought a
restraining order against RSA to prohibit it from requiring him to admit
responsibility or take a polygraph examination, which was eventually dismissed as
moot. Finally, Gross’s parole officer referred him to THE, the only remaining sex
offender treatment program available in Denver, where Gross lived. According to the
parole revocation investigation report, Gross failed to schedule an appointment with
THE.
In February 2011, Gross was charged with violating parole based on his failure
to schedule appointments with RSA or THE and for associating with a convicted
5
felon. At the March 2011 revocation hearing, the parole board directed Gross’s
parole officer to contact PTS, RSA, SORS, and THE to determine if any would
accept Gross into treatment, but all declined to accept Gross based on his previous
unwillingness to comply with their treatment programs. Gross’s parole was revoked
in April 2011 based on his failure to obtain sex offender treatment and for associating
with a convicted felon.
Gross filed his § 1983 complaint in October 2011. He alleged the State
Defendants violated his First, Fifth and Fourteenth Amendment rights by ordering
him to participate in sex offender treatment as a condition of parole with treatment
providers who could arbitrarily or capriciously refuse him treatment. He alleged the
Private Defendants violated his constitutional rights when, following the March 2011
parole revocation hearing, they refused to accept Gross into their sex offender
treatment programs, allegedly in retaliation for Gross’s exercise of his First
Amendment right to challenge their acceptance-of-responsibility treatment
requirement. Gross was released on parole in November 2011, but petitioned to have
his parole revoked. He was unconditionally released from custody in November
2012.
The State Defendants moved for dismissal on the grounds that Gross’s claims
were barred by the two-year statute of limitations and that they were entitled to
qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The
doctrine of qualified immunity protects government officials from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
6
constitutional rights of which a reasonable person would have known.” (internal
quotation marks omitted)). The district court granted summary judgment to the State
Defendants on the ground that they were entitled to qualified immunity. The district
court dismissed the claims against the Private Defendants on the grounds that Gross’s
complaint failed to allege any facts showing they were acting under color of state
law, as is required for liability under § 1983, when they refused to accept him for
treatment.2
II. Discussion
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). We review de novo the district court’s grant
of summary judgment to the State Defendants. Reeves v. Churchich, 484 F.3d 1244,
1250 (10th Cir. 2007). We also review de novo the district court’s dismissal of the
claims against the Private Defendants under Rule 12(b)(6). Peterson v. Grisham,
594 F.3d 723, 727 (10th Cir. 2010).
2
John Davis, president of RSA, and Walter Simon, president of PTS, filed
separate Fed. R. Civ. P. 12(b)(6) motions to dismiss for failure to state a claim, both
of which were granted by the district court. Frederick Tolson, president of SORS,
did not respond to the complaint, but the district court denied Gross’s motion for
default judgment, ruling the claims against Tolson were the same as those against
Davis that it dismissed for failure to state a claim. It does not appear that Greig
Veeder, president of THE, ever entered an appearance, but the district court
dismissed all claims against all defendants in its final judgment, and Gross does not
appeal Veeder’s dismissal.
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A. State Defendants
The State Defendants argued in their motion for dismissal, in their motion for
summary judgment, and now on appeal that Gross’s claims against the State
Defendants were barred by the two-year statute of limitations. Gross failed to ever
assert any responsive argument to the statute of limitations arguments before the
district court or before this court on appeal. We conclude from our independent
review of the record that Gross’s claims are time-barred as a matter of law.
See United States v. Sandoval, 29 F.3d 537, 542 n.6 (10th Cir. 1994) (holding we
may affirm on alternative grounds if “there is a record sufficient to permit
conclusions of law” (internal quotation marks omitted)); see also Reed v. Bennett,
312 F.3d 1190, 1195 (10th Cir. 2002) (requiring court to determine if summary
judgment is appropriate under Fed. R. Civ. P. 56 even if the opposing party does not
respond to the summary judgment motion).
“[T]he statute of limitations for § 1983 actions brought in Colorado is two
years from the time the cause of action accrued.” Fogle v. Pierson, 435 F.3d 1252,
1258 (10th Cir. 2006). While state law governs the applicable statute of limitations,
federal law determines when the claim accrues and when the limitations period starts
to run. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). “A § 1983
action accrues when facts that would support a cause of action are or should be
apparent.” Fogle, 435 F.3d at 1258 (internal quotation marks omitted). “Since the
injury in a § 1983 case is the violation of a constitutional right, such claims accrue
when the plaintiff knows or should know that his or her constitutional rights have
8
been violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998)
(citations and internal quotation marks omitted). The claim accrues when the
constitutional injury occurs, “not when the consequence of that constitutional
injury . . . manifested itself.” Id.We have reviewed Gross’s allegations in his complaint, as well as the
undisputed evidence presented in the motion for summary judgment, and conclude it
is undisputed that Gross knew or should have known when he was paroled in August
2008 and re-paroled in August 2009, the exact terms and conditions of parole on
which his constitutional claims are based. See Aplt. App. at 221; 224-25. Gross has
known since he was first paroled in 2008 and again in 2009 that he was required to
undergo sex offender treatment, and that the conditions of this treatment would be
decided by the treatment provider. His August 2009 parole conditions stated:
You must actively participate in offense specific mental health treatment
approved by the Department of Corrections which may be at your own
expense. . . . You will sign and abide by the conditions of a treatment
program as defined by the treatment provider. Program participation is
defined as attendance at all meetings, prompt payment of fees, admission of
responsibility for your offense, and progress toward reasonable treatment
goals. Unsuccessful termination from treatment will be considered a
violation of this directive. Subsequent treatment referrals, if any, will be
at the discretion of your Community Parole Officer.
Id. at 225 (emphasis in italics added).
Gross signed and initialed these requirements, and therefore knew he had to
attend a treatment program offered by the approved treatment providers, accept
responsibility for his offense, submit to polygraph examinations, and follow whatever
conditions of treatment the treatment providers dictated. Gross argues that he is not
9
challenging the constitutionality of the parole condition that he undergo sex offender
treatment. Rather, he asserts the focus of his complaint is that he had a protected
liberty interest in being able to participate in this treatment, and that the State
Defendants violated his due process rights by arbitrarily delegating the duty to treat
him to treatment providers who could arbitrarily determine whether to accept him for
treatment or to terminate him. See Opening Br. at 14-15. This alleged injury,
however, was clear at the time Gross was released on parole in August of 2008 and
2009, when he knew the treatment providers could dictate the terms of his treatment
and knew he was required to follow those conditions or have his parole revoked.
Gross knew or should have known then that the State Defendants had delegated
authority to the treatment providers to dictate the terms of his treatment, which would
include terminating him from treatment, or refusing to accept him for treatment based
on their own determination that he was not suitable for the treatment they offered.
The fact that the treatment providers ultimately refused to enroll or re-enroll him was
merely a consequence of the stated terms of his parole. The April 2011 revocation
decision was not a separate and distinct constitutional injury, but simply a direct
consequence of the 2008 and 2009 parole conditions. As in Smith, “the constitutional
injury . . . which trigger[ed] the statute of limitations for purposes of § 1983,
occurred when [the terms and conditions of Gross’s parole were imposed], not when
the consequence of that constitutional injury . . . manifested itself.” 149 F.3d at
1154. Thus, we conclude that all of Gross’s claims against the State Defendants are
time-barred.
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B. Private Defendants
A plaintiff asserting that a private actor deprived him of a constitutional right
while acting under of color of state law must rely on more than conclusory
allegations to state such a cause of action, but must include in his complaint
“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 (2009) (internal quotation marks
omitted). Gross’s complaint alleged the Private Defendants violated his
constitutional rights when, after the March 2011 revocation hearing, the treatment
providers they operated refused to re-enroll or accept him into their programs.3 But
his complaint only made conclusory allegations that the Private Defendants were
state actors simply because Colorado had contracts with the treatment providers they
operated. The district court ruled there was no allegation in Gross’s complaint that
any decision by the Private Defendants related to Gross’s admission into a treatment
program was an exercise of any right or privilege created by the state, or that the
state in any way dictated any decision by the treatment providers whether to accept
Gross for treatment. Thus, it ruled Gross failed to satisfy the essential § 1983
requirement that a defendant be acting under color of state law.
3
In particular, he contends that Davis and Simon declined to accept him for
treatment in retaliation for Gross’s First Amendment activities challenging the terms
and conditions of his parole. In addition to asserting they were not acting under color
of state law, the Private Defendants also moved to dismiss on the ground that Gross
failed to allege a cognizable First Amendment violation. Because we agree Gross
failed to allege facts showing the Private Defendants acted under color of state law,
we need not address these alternative grounds for dismissal.
11
On appeal, Gross argues he alleged sufficient facts to show the Private
Defendants were acting under color of state law. He cites to his allegations that the
treatment providers operated by the Private Defendants had contracts with the State
of Colorado to provide sex offender treatment to parolees, and to his assertion that
the State delegated parole revocation authority to those treatment providers because
they could reject a referred parolee for treatment. These allegations are insufficient
to show the Private Defendants acted under color of state law.
For a deprivation of a constitutional right to be committed under color of law
for purposes of § 1983, it “must be caused by the exercise of some right or privilege
created by the State or by a rule of conduct imposed by the state or by a person for
whom the State is responsible,” and “the party charged with the deprivation must be a
person who may fairly be said to be a state actor.” Lugar v. Edmondson Oil Co.,
457 U.S. 922, 937 (1982). “[M]erely private conduct, no matter how discriminatory
or wrongful,” cannot provide the grounds for a claim brought under § 1983.
Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks
omitted).
The Tenth Circuit has set forth four tests under which a private actor may be
held accountable as a state actor for a constitutional deprivation: (1) the nexus test,
(2) the public function test, (3) the joint action test, and (4) the symbiotic relationship
test. See Gallagher v. “Neil Young Freedom Concert,” 49 F.3d 1442, 1447 (10th Cir.
1995) (citations and quotations omitted). Delegation of authority to a private actor is
insufficient to create state action under § 1983 without meeting one of these tests.
12
Wittner v. Banner Health, 720 F.3d 770, 780 (10th Cir. 2013). Gross argues only that
he alleged sufficient facts to show the actions of the Private Defendants met the
public function test. The facts alleged in his complaint do not satisfy any of the tests.
A nexus exists only when a state has exercised “coercive power” over the
challenged activity. Id. at 775. Gross did not allege any facts to suggest the State
exercised any such coercive power over the Private Defendants’ treatment decisions
with respect to Gross. “The ‘public function’ test asks whether the challenged action
is a traditional and exclusive function of the state” and looks at whether the services
provided by the defendants—here, sex offender treatment and therapy—are
traditional and exclusive functions of the state. See id. at 776-77. Gross did not
assert any facts or cite any authority indicating that operating a sex offender
treatment program is a traditional and exclusive function of the state.
The “joint action” test asks “whether state officials and private parties have
acted in concert in effecting a particular deprivation of constitutional rights.” Id. at
777 (internal quotation marks omitted). Gross did not allege any facts suggesting the
State Defendants conspired with or acted jointly with the Private Defendants in
making any decision not to admit him into their treatment programs. “Action taken
by private entities with the mere approval or acquiescence of the State is not state
action.” Id. (internal quotation marks and bracket omitted). Finally, the “symbiotic
relationship” test asks if the state “has so far insinuated itself into a position of
interdependence with a private party [that] it must be recognized as a joint participant
in the challenged activity.” Id. (internal quotation marks omitted). The “mere
13
private purchase of contract services” or “[p]ayments under government contracts . . .
are insufficient to establish a symbiotic relationship between the government and a
private entity.” Id. at 778 (internal quotation marks and brackets omitted). In
summary, then, Gross failed to state a claim that the Private Defendants were state
actors for purposes of § 1983.
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
14