IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO

Judge William J. Martínez 

Civil Action No. 11-cv-02530-WJM-KLM

ALFONSO PACHECO,

Plaintiff,

v.

RAE TIMME, Warden, Fremont Correctional Facility,

TOM CLEMENT, DOC Executive Director, and

ANTHONY A. DeCESARO, Step 3 Grievance Officer, All in Both Their Individual and

Official Capacities,

Defendants.

ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION AND GRANTING

IN PART AND DENYING IN PART MOTION TO DISMISS

Plaintiff Alfonso Pacheco brings the above-captioned action against Rae Timme,

Tom Clement, and Anthony DeCesaro (collectively “Defendants”) arising out of his

classification as a sex offender during his incarceration at the Fremont Correctional

Facility. (ECF No. 1.) Plaintiff alleges that Defendants violated his rights under the

Fifth, Eighth, and Fourteenth Amendments to the United States Constitution. (Id.) 

In lieu of an answer, Defendants filed a Motion to Dismiss (“Motion”) pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 13.) The Motion was referred to

United States Magistrate Judge Kristen L. Mix. (ECF No. 14.) On August 1, 2012,

Magistrate Judge Mix issued a Recommendation that Defendants’ Motion to Dismiss be

granted in part and denied in part. (ECF No. 17.) Plaintiff filed timely Objections to the

Recommendation. (ECF No. 19.) 

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For the reasons set forth below, the Magistrate Judge’s Recommendation is

adopted, Plaintiff’s Objections are overruled, and Defendants’ Motion to Dismiss is

granted in part and denied in part.

I. LEGAL STANDARD

When a magistrate judge issues a recommendation on a dispositive matter,

Federal Rule of Civil Procedure 72(b)(3) requires that the district court judge “determine

de novo any part of the magistrate judge’s [recommendation] that has been properly

objected to.” Fed. R. Civ. P. 72(b)(3). In conducting its review, “[t]he district court judge

may accept, reject, or modify the recommendation; receive further evidence; or return

the matter to the magistrate judge with instructions.” Id.

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). To

survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as

true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the

plaintiff’s allegations.” Shero v. City of Grove, Okla., 510 F.3d 1196, 1200 (10th Cir.

2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “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).

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The Court must construe the filings of a pro se litigant liberally. See Haines v.

Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.

1991). For example, the Court may treat a pro se litigant's complaint as an affidavit if it

alleges facts based on personal knowledge and has been sworn under penalty of

perjury. Hall, 935 F.2d at 1111 (citing Jaxon v. Circle K Corp., 773 F.2d 1138, 1139 n. 1

(10th Cir. 1985) (citation omitted)). However, the Court should not be the pro se

litigant's advocate, nor should the Court “supply additional factual allegations to round

out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf.” 

Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall,

935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules

that govern other litigants. See Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

II. ANALYSIS

After careful and thorough analysis, the Magistrate Judge recommended that the

Motion be granted as to Plaintiff’s claims under the Fifth Amendment and Eighth

Amendment and that such claims be dismissed. (Rec. at 14-16.) The Magistrate

Judge also recommended that Plaintiff’s Fourteenth Amendment claims be dismissed

to the extent they involved the right to appeal his classification as a sex offender, his

removal from the regular prison population and revocation of privileges, and his loss of

good time credits. (Id. at 9-13.) The Magistrate Judge recommended that the Motion

be denied with respect to Plaintiff’s claim for violation of the Fourteenth Amendment

arising out of his classification as a sex offender. (Id. at 8-9.)

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Plaintiff’s Objection states that he is objecting to the dismissal of his Fifth and

Eighth Amendment claims and his Fourteenth Amendment “Liberty Interest” claim.

(Obj. at 1.) The Court will address these issues below.

A. Claims to Which Plaintiff Does Not Substantively Object

As previously stated, Plaintiff professes to object to the Magistrate Judge’s

Recommendation that his Fifth Amendment claim and his Fourteenth Amendment

“Liberty Interest” claim be dismissed. However, his Objection only substantively

discusses his Eighth Amendment claim and one aspect of his Fourteenth Amendment

claim—his claim that his classification as a sex offender violated his Due Process rights

(which the Magistrate Judge recommends be allowed to proceed). In his Objection,

Plaintiff fails to discuss his Fifth Amendment claim or his Fourteenth Amendment claim

to the extent it relates to his ability to appeal his classification, his removal from the

prison population and revocation of privileges, or his loss of good time credits. 

With respect to the claims that Plaintiff fails to substantively address in his

Objection, the Court need only review the Magistrate Judge’s Recommendation for

clear error. See Strepka v. Sailors, 494 F. Supp.2d 1209, 1230 (D. Colo. 2007) (citing

In re Griego, 64 F.3d 580, 583 (10th Cir. 1995) (“A general objection that does not put

the district court on notice of the basis for the objection will not preserve the objection

for de novo review.”)) The Court has reviewed the Magistrate Judge’s analyses and

conclusions with respect to these claims and concludes that they are not clearly

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 Had the Court reviewed these issues de novo, it would have arrived at the same 1

conclusion and dismissed Plaintiff’s claims for the reasons stated by the Magistrate Judge in

her Recommendation.

 Plaintiff is housed at the Fremont Correctional Facility where it is apparently the policy 2

to require that inmates classified as sex offenders wear orange pants. (See ECF No. 19 at 2.)

5

erroneous. 

1

Accordingly, the Court grants Defendants’ Motion to Dismiss Plaintiff’s Fifth

Amendment claim and his Fourteenth Amendment claim to the extent it arises out of

Plaintiff’s alleged inability to appeal his classification as a sex offender, his removal

from the regular prison population and loss of privileges, and his loss of good time

credits. Because the defect in the Fifth Amendment claim is not curable by

amendment, the Court dismisses this claim with prejudice. See Bauchman ex rel.

Bauchman v. West High Sch., 132 F.3d 542, 559 (10th Cir. 1997). Plaintiff’s

Fourteenth Amendment claims will be dismissed without prejudice. See Staats v.

Cobb, 455 F. App’x 816, 818 (10th Cir. 2011) (court should dismiss claim without

prejudice where it is possible that plaintiff could amend the complaint and state a

claim). 

B. Eighth Amendment Claim

The Magistrate Judge recommended that Plaintiff’s Eighth Amendment claim be

dismissed because Plaintiff’s “orange pants” status does not constitute cruel and 2

unusual punishment. (Rec. at 15-16.) 

The Magistrate Judge first held that losing certain privileges as a consequence of

being classified as a sex offender does not constitute cruel and unusual punishment. 

(Id. at 15.) Plaintiff does not object to this portion of the Magistrate Judge’s analysis. 

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The Magistrate Judge also found that Plaintiff’s Complaint fails to specify any

actual threat to his safety, verbal harassment, or abuse related to his “orange pants”

status and, therefore, he failed to state a claim for a failure to protect Eighth

Amendment violation. (Rec. at 16.) Plaintiff objects to this portion of the

Recommendation and contends that the mere fact that he is forced to wear orange

pants places him “in a precarious position”. (Obj. at 6.) Plaintiff states: “The danger of

being labeled a sex offender is implicit. No actual verbal threat is required.” (Id.) 

Plaintiff also states that the Colorado Department of Corrections (“CDOC”) has had

three inmates killed at its Sterling facility “because they were labeled ‘sex offenders’.” 

(Id.) 

The Court notes that none of the allegations mentioned in Plaintiff’s Objection

appear in his Complaint. (Compared ECF No. 19 to ECF No. 1.) In ruling on a Motion

to Dismiss, the Court is permitted only to consider the allegations in Plaintiff’s Complaint

and any documents attached to the Complaint. Ridge at Red Hawk, LLC v. Schneider,

493 F.3d 1174, 1177 (10th Cir. 2007). Therefore, the additional allegations contained

in Plaintiff’s Objection are not properly before the Court. However, the Court is mindful

of Plaintiff’s pro se status and will consider whether these additional allegations —

coupled with the original allegations contained in his Complaint—state a claim for a

violation of Plaintiff’s Eighth Amendment rights.

In Riddle v. Mondragon, 83 F.3d 1197 (10th Cir. 1996), the Tenth Circuit faced

the issue of whether a prisoner had sufficiently alleged a threat to his safety based on

his sex offender status. The prisoner in that case alleged that he was “exposed to

adverse prison setting, constantly in fear of his life” due to threats of assault by other

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inmates based on his sex offender status. Id. at 1205. The court found that the

prisoner’s allegations of harm were conclusory and showed only a subjective fear of

harm. Absent real and substantial threats to his safety, the prisoner’s allegations were

insufficient to state a claim. Id. at 1205-06.

Under this standard, Plaintiff has failed to allege sufficient facts to state a claim

for an Eighth Amendment violation. The fact that some inmates at another CDOC

facility were harmed due to their status as a sex offender does not mean that Plaintiff is

subjected to constant threats of violence at his facility based on his “orange pants”

status. Plaintiff has failed to allege any specific threat to his personal safety, much less

conditions that pose “a substantial risk of serious harm.” Riddle, 83 F.3d at 1205.

Accordingly, the Court finds that Plaintiff has failed to state a claim for an Eighth

Amendment violation. The Court will dismiss this claim without prejudice because it is

possible that Plaintiff could amend his allegations such that he could allege an Eighth

Amendment violation. See Staats, 455 F. App’x at 818. 

C. Fourteenth Amendment Violation Related to His Classification as a 

Sex Offender

The Magistrate Judge found that Plaintiff had stated a claim for deprivation of his

Due Process rights because there was no evidence that Plaintiff was given notice and

an opportunity to be heard before he was classified as a sex offender. (Rec. at 8-9.) 

She therefore recommends that Defendants’ Motion be denied as to this claim. (Id. at

9.) Defendants have not objected to this—or any other—aspect of the

Recommendation. Moreover, Plaintiff explicitly states that he is only objecting to the

dismissal of his claims. (Obj. at 1.) 

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No party having objected to this portion of the Recommendation, the Court

reviews the Magistrate Judge’s analysis for clear error. See Fed. R. Civ. P. 72(b)

advisory committee’s note (“When no timely objection is filed, the court need only

satisfy itself that there is no clear error on the face of the record in order to accept the

recommendation.”); see also Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991)

(“In the absence of timely objection, the district court may review a magistrate’s report

under any standard it deems appropriate.”).

The Court concludes that the Magistrate Judge’s analysis is not clearly

erroneous. Accordingly, the Court denies Defendants’ Motion to Dismiss as it pertains

to Plaintiff’s Due Process claim arising out of his classification as a sex offender. 

III. CONCLUSION

For the reasons set forth above, the Court ORDERS as follows:

1. The Magistrate Judge’s Recommendation (ECF No. 17) is ADOPTED;

2. Defendants’ Motion to Dismiss (ECF No. 13) is GRANTED IN PART and

DENIED IN PART; 

3. Defendants’ Motion to Dismiss is GRANTED with respect to Plaintiff’s Fifth

Amendment claim and such claim is DISMISSED WITH PREJUDICE; 

4. Defendants’ Motion to Dismiss is GRANTED with respect to Plaintiff’s Eighth

Amendment claim and such claim is DISMISSED WITHOUT PREJUDICE;

5. Defendants’ Motion to Dismiss is GRANTED with respect to Plaintiff’s Fourteenth

Amendment claims to the extent they challenge Plaintiff’s ability to appeal his

classification as a sex offender, his removal from the general prison population

and resulting loss of privileges, and his loss of good time credits and such claims

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are DISMISSED WITHOUT PREJUDICE; and

6. Defendants’ Motion to Dismiss is DENIED with respect to Plaintiff’s Fourteenth

Amendment claim arising out of his classification as a sex offender. 

Dated this 13 day of September, 2012. th

BY THE COURT:

 

William J. Martínez 

United States District Judge

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