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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

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.

_____________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

 

ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX

This matter is before the Court on the Motion to Dismiss All Claims [Docket No.

13; Filed December 30, 2011] (“the Motion”), filed by Defendants Rae Timme (“Timme”),

Tom Clements (“Clements”), and Anthony A. Decesaro (“Decesaro”). Plaintiff filed a

Response [#16] in opposition to the Motion on June 22, 2012. Defendants failed to timely

file a Reply. The Motion is now ripe for review. Pursuant to 28 U.S.C. § 636(b)(1) and

D.C.Colo.L.Civ.R. 72.1C.3, the Motion has been referred to this Court for recommendation

[#14]. Having reviewed the entire case file and being sufficiently advised, the Court

respectfully RECOMMENDS that the Motion be GRANTED IN PART and DENIED IN

PART.

I. Backround

Plaintiff, who proceeds in this matter pro se, is a prisoner with the Colorado

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 Plaintiff mentions in his Response that he “seeks the Court’s permission to amend his

complaint to ‘remove’ FCF Warden Rae Timme, because she is no longer the acting Warden, and

add Susan Jones, who is now the Fremont Correctional Facility[ ] Warden.” Response [#16] at 1.

Plaintiff does not include a proposed Amended Complaint for the Court’s and Defendants’ review.

If Plaintiff is seeking leave to file an Amended Complaint, he must file a motion which complies with

the federal and local rules, namely, Fed. R. Civ. P. 15(a) and 20(a), and which includes the

proposed Amended Complaint as a document separate from the motion. Furthermore, Plaintiff

must use the form complaint prescribed by this Court. D.C.COLO.LCivR 8.2A. The Court will not

permit piecemeal adjudication of Plaintiff’s case, thus Plaintiff must include all defendants he

intends to name in the proposed Amended Complaint.

2

 “Orange-pants status” refers to Plaintiff’s status as a sex offender.

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Department of Corrections (“CDOC”). See Compl. [#1] at 1-2. He brings this action

against three Defendants: (1) Defendant Timme, the Warden of Fremont Correctional

Facility (“FCF”);1

 (2) Defendant Clements, the Executive Director of CDOC; and (3)

Defendant Decesaro, the Step 3 Grievance Officer. See id. at 2. 

Plaintiff initiated this 42 U.S.C. § 1983 action as a result of alleged events occurring

at the FCF on April 5, 2011. Id. at 3. In short, he alleges that: (1) Defendants removed him

from general population and placed him in orange-pants status;2

 (2) Defendants labeled

Plaintiff as Non-Compliant for refusing to admit to being a sex offender and punished him

for failing to participate in the Sex Offender Treatment and Monitoring Program (“SOTMP”)

by taking away four of his ten days of earned time credits, thereby removing the opportunity

to shorten the length of his sentence; and (3) Defendants denied Plaintiff access to the

inmate telephone, personal visits, adequate recreation, and the everyday privileges granted

to general population inmates. Id. at 3. 

Plaintiff seeks only injunctive relief in this matter: (1) a Federal investigation into

CDOC’s use of allocated Federal Funds; (2) enjoining CDOC from permitting future injury

to Plaintiff from other inmates as a result of his sex offender classification; (3) restoring him

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 In connection with this allegation, Plaintiff mentions “Exhibit 1,” but the document to which

he refers does not appear on the electronic docket. See Compl. [#1] at 4.

4

 AR 700-19 promulgates procedures for the classification of inmates as sex offenders.

Motion [#13] at 11.

5

 Plaintiff does not identify the Administrative Head by name and it is unclear whether he is

referring to Defendant Clement, as CDOC Executive Director, or to some other person.

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to general population with all privileges intact; (4) returning all earned time credits that have

been taken from him as a result of his sex offender status; and (5) removing his name from

all CDOC files labeling him a sex offender. See id. at 9-10. 

Plaintiff asserts that his rights pursuant to the Fourteenth, Fifth, and Eighth

Amendments have been violated. First, Plaintiff asserts that he filed all three steps of the

CDOC grievance process. Id. at 4. Both Steps 1 and 2 of the process were denied and,

when Plaintiff filed a Step 3 grievance, Defendant Decesaro allegedly refused to address

it.3

 Id. Plaintiff asserts that this is a violation of the Fourteenth Amendment’s guarantee

of due process because CDOC’s Administrative Regulation (“AR”) 850-04 does not allow

for any administrative appeal as to an AR 700-19 finding,4

 and the finding is not grieveable.

Id. Plaintiff avers that the decision to classify him as a S-4 sex offender is entirely at the

discretion of the Administrative Head.5

 Id. 

In addition, Plaintiff alleges that he has never been convicted of a sex offense. Id.

at 5. Plaintiff contends that he has been labeled as a sex offender in need of treatment in

order to allow CDOC to receive federal funding for the SOTMP. Id. Therefore, he asserts

that his constitutional rights under the Fourteenth Amendment have been violated. Id. 

Second, Plaintiff avers that the classification which AR 700-19 imposes on him

violates his Fifth Amendment right against self-incrimination, because under this regulation

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he is forced to admit to past behavior for which he was never criminally charged. Id. at 6.

Third, Plaintiff asserts that the CDOC’s orange-pants status is a violation of the

Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 7. Plaintiff

contends that the orange pants are the sign of a sex offender, and they create a direct

danger to him from other inmates, even though he was never convicted of any sex crime

in a court of law. Id.

Defendants responded to Plaintiff’s Complaint [#1] with the Motion [#13]. They

assert that Plaintiff’s claims against them should be dismissed for failure to state a claim

on which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). See Motion [#13] at

1. They aver that Plaintiff fails to state an actionable Fourteenth Amendment claim for due

process because his assertion that he was labeled an S-4 sex offender without due process

is false. Id. at 5. Defendants state that classification of inmates pursuant to AR 700-19,

is not mandatory; thus, inmates classified as S-4 sex offenders are afforded the requisite

due process. Id. at 6. In response to Plaintiff’s claim that his sex offender classification is

non-grievable, Defendants contend that Plaintiff should have filed a state court action under

C.R.C.P. 106(a)(4). Id. at 7. Defendants also aver that because inmates are not entitled

to remain in general population or entitled to the privileges that come with being a general

population prisoner, Plaintiff has failed to state an actionable Fourteenth Amendment claim

arising from his removal from general population and the revocation of certain privileges.

Id. at 8-10. 

Defendants also contend that Plaintiff’s claim of self-incrimination should be

dismissed. Id. at 11. Defendants state that the consequences resulting from Plaintiff’s

unwillingness to admit to prior wrongful sexual conduct fail to give rise to a Fifth

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Amendment violation. Id. Defendants aver that Plaintiff “was left with a choice: take

advantage of a benefit that the CDOC provided or turn down that benefit in order to avoid

what he feared, perhaps legitimately, would be self-incriminating statements,” a choice

which “does not constitute compulsion.” Id.

 Finally, Defendants assert that Plaintiff’s claim for relief arising from purported cruel

and unusual punishment in violation of the Eighth Amendment should be dismissed. Id.

at 12. Defendants aver that Plaintiff’s claim falls short of satisfying an Eighth Amendment

claim because he proffers vague and speculative allegations that his life and health are in

danger as result of his orange-pants status. Id. at 14. Defendants state that Plaintiff does

not allege any facts that render plausible that Defendants knew of and disregarded an

excessive risk to Plaintiff’s health or safety. Id.

II. Standard of Review

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”). 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 Atl. Corp. 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

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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, 129 S.Ct. 1937, 1949 (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 assertions devoid of further factual

enhancement.” Id. (internal quotation marks omitted). “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).

When considering Plaintiff's Complaint [#1] and Response [#16], the Court is mindful

that it 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). However, the

Court should not be a pro se litigant's advocate, nor should the Court “supply additional

factual allegations to round out [a pro se litigant's] complaint or construct a legal theory on

[his] behalf.” Whitney v. 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. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

III. Analysis

A. Fourteenth Amendment

Plaintiff claims that the CDOC’s decision to place him in orange-pants status and

classify him as a sex offender violates his due process rights. He bases this claim on the

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allegations that he was inappropriately classified as a sex offender, that his sex offender

classification is non-grievable, and that he was removed from the general population and

had certain privileges revoked.

Procedural due process protects the individual against “arbitrary action of

government.” Wolff v. McDonnell, 418 U.S. 539, 557 (1974). While it is true that “the

constitutional rights that prisoners possess are more limited in scope than the constitutional

rights held by individuals in society at large,” Shaw v. Murphy, 532 U.S. 223, 229 (2001),

“[t]here is no iron curtain drawn between the Constitution and the prisons of this country.”

Wolff, 418 U.S. at 555–56. In general, a plaintiff must make two showings in order to

proceed on a procedural due process claim. See Bartell v. Aurora Pub. Sch., 263 F.3d

1143, 1149 (10th Cir. 2001). First, a plaintiff must demonstrate that he possesses a

protected liberty or property interest. Id. Second, a plaintiff must show the procedures

utilized were inadequate under the circumstances. Id. at 1149.

The Constitution does not in itself create any liberty or property interest and

therefore “[t]he Due Process clause standing alone confers no liberty interest in freedom

from state action ‘within the sentence imposed.’“ Sandin v. Conner, 515 U.S. 472, 480

(1995) (citation omitted). Rather, liberty interests “are created and their dimensions are

defined by existing rules or understandings that stem from an independent source such as

state law-rules or understandings that secure benefits and that support claims of

entitlement to those benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). For prisoners, a liberty interest is only found in a “restraint which, while not

exceeding the sentence in such an unexpected manner as to give rise to protection by the

Due Process Clause of its own force . . . , nonetheless imposes atypical and significant

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 Plaintiff also states that he was never convicted of a sex crime; regardless, an inmate who

has not been convicted of a sex offense may still be classified as a sex offender if the prison

provides him procedural due process. Gwinn, 354 F.3d at 1218–19.

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hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin, 515 U.S.

at 484.

1. Classification as a Sex Offender

An inmate has a protected liberty interest in not being labeled a sex offender and is

entitled to due process before being so labeled. Chambers v. Colo. Dep't of Corr., 205

F.3d 1237, 1243 (10th Cir. 2000). The procedural requirements for a sex offender

classification decision are set forth in Wolff, supra. Gwinn v. Awmiller, 354 F.3d 1211,1219

(10th Cir. 2004); see also Neal v. Shimoda, 131 F.3d 818, 830 (9th Cir. 1997). Those

requirements are: notice of the charges, an opportunity to present witnesses and evidence

in defense of the charges, and a written statement by the factfinder of the evidence relied

on and the reasons for the disciplinary action. Gwinn, 354 F.3d at 1219. Additionally, due

process requires “some evidence” to support the decision and an impartial decisionmaker.

Wolff, 418 U.S. at 592.

In support of his averment that he was denied due process before he was given

orange-pants status, the only salient event mentioned by Plaintiff is that he refused to admit

to the CDOC Mental Health Staff that he was a sex offender in need of treatment, as

evidenced by his refusal to sign the SOTMP paperwork.6

 See Compl. [#1] at 4. Plaintiff

therefore challenges the determination by Defendants to classify him as a sex offender. 

In determining whether a factfinder's decision is supported by sufficient evidence,

the Court need not conduct an “examination of the entire record, independent assessment

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of witnesses' credibility or weighing of the evidence. Instead, the relevant question is

whether there is any evidence that could support the conclusion reached by the disciplinary

board.” Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455–56 (1985). The

decision can be upheld if the evidence supporting the decision is “meager.” Id. at 457. Due

process does not require that the evidence supporting a disciplinary charge be

“overwhelming or unambiguous.” Starkweather v. Archuleta, No. 06–cv–01289–WDM–

BNB, 2008 WL 2323878, at *3 (D. Colo. June 4, 2008).

Here, Defendants have not directly asserted that a hearing was held at which

evidence was presented from which they could find that Plaintiff should be classified as a

sex offender. See Motion [#13] at 5. In addition, Plaintiff omits mention of any hearing in

his Complaint; he merely states that when he refused to sign SOTMP paperwork, he was

placed in orange-pants status. Based on these filings, the Court must find that Plaintiff has

stated a claim for a due process violation, as there is a lack of evidence to support

Plaintiff’s classification as a sex offender. Accordingly, Plaintiff has stated a claim for a

Fourteenth Amendment due process violation.

2. Appealability of Classification

Plaintiff also asserts that he was denied due process because there was no avenue

for him to appeal his classification as a sex offender. See Compl. [#1] at 4-5. He states

that the relevant Administrative Regulations do not permit an administrative appeal or a

grievance process for classification as a sex offender. See id. at 4. Defendants do not

deny these allegations. See Motion [#13] at 6-7. However, they aver that Colorado Rule

of Civil Procedure (“C.R.C.P.”) 106(a)(4) provides for the exclusive remedy for reviewing

sex offender classification. See id. at 6. 

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Defendants are correct that Plaintiff could have filed a state court action pursuant

to C.R.C.P. 106(a)(4). See Vondra v. C.D.O.C., 226 P.3d 1165, 1167 (Colo. App. 2009)

(stating that CDOC’s “classification of an inmate as a sex offender is a quasi-judicial action

subject to review under C.R.C.P. 106(a)(4)”). Plaintiff alleges no reason why he could not

have appealed his classification as a sex offender in a state court action. Accordingly, his

claim that he was denied due process because he was unable to appeal his classification

as a sex offender fails.

3. Removal from Population and Revocation of Privileges

Plaintiff alleges that he was removed from the general population on April 5, 2011,

a little less than six months before he filed his Complaint. See Compl. [#1] at 4. He further

states that he was denied such privileges as access to the inmate telephone, personal

visits, and adequate recreation. See id. at 3.

Prisoners do not have a constitutionally recognized liberty interest in a particular

security classification nor a constitutional right to be confined in a particular prison. See

Hewitt v. Helms, 459 U.S. 460, 468 (1983) (“the transfer of an inmate to less amenable and

more restrictive quarters for nonpunitive reasons is well within the terms of confinement

ordinarily contemplated by a prison sentence.”); Meachum v. Fano, 427 U.S. 215, 228

(1976) (“Whatever expectation the prisoner may have in remaining at a particular prison

so long as he behaves himself, it is too ephemeral and insubstantial to trigger procedural

due process protections so long as prison officials have discretion to transfer him for

whatever reason or for no reason at all.”). Therefore, mere removal of a prisoner from

general population does not, on its own, implicate a liberty interest. See Sandin, 515 U.S.

at 484; Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996). 

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Nonetheless, the duration and degree of removal may be so severe as to implicate

the due process clause. See Trujillo v. Williams, 465 F.3d 1210, 1225 (10th Cir. 2006).

However, the Tenth Circuit requires that district courts examine the conditions of

confinement before they conclude whether such conditions impose an atypical and

significant hardship on the inmate. See Fogle v. Pierson, 435 F.3d 1252, 1259 (10th Cir.

2006) (citation omitted). The Tenth Circuit has identified the following relevant factors to

consider when determining whether removal from general population implicates a protected

liberty interest: (1) whether “the segregation relates to and furthers a legitimate penological

interest, such as safety or rehabilitation; (2) [whether] the conditions of placement are

extreme; (3) [whether] the placement increases the duration of confinement . . . ; and (4)

[whether] the placement is indeterminate.” Estate of DiMarco v. Wyoming Dep't of Corr.,

473 F.3d 1334, 1342 (10th Cir. 2007).

With respect to his removal from general population, Plaintiff has failed to provide

details which would lead the court to the conclusion that the prison conditions he endured

imposed an “atypical and significant hardship.” See Sandin, 515 U.S. at 484. Because

Colorado inmates do not have a liberty interest in avoiding removal from general

population, the mere duration of Plaintiff's confinement does not serve to create a liberty

interest. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Further, at least

three of the relevant factors set forth in DiMarco weigh against finding an enforceable

liberty interest. Plaintiff has provided no allegations that his current conditions are atypical

or extreme, that his removal alone increases the duration of his confinement, or that his

removal from general population is permanent. DiMarco, 473 F.3d at 1342. 

Likewise, Plaintiff's allegations of lack of access to the inmate telephone, personal

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visits, adequate recreation, and other privileges fail to demonstrate any condition that is

sufficiently atypical or significant in relation to the ordinary incidents of prison life to

implicate a liberty interest. See Sandin, 515 U.S. at 484. In short, the Complaint is devoid

of facts regarding the nature of Plaintiff's removal from general population that would be

sufficient to suggest the sort of extreme conditions where courts have found the Sandin test

to be met. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 223 (2005) (finding that conditions

at state Supermax facility imposed a significant and atypical hardship where: (1) all human

contact was prohibited; (2) the lights were on 24 hours per day; (3) inmates could only

exercise one hour per day in a small indoor room; (4) assignment was indefinite; and (5)

inmates otherwise eligible for parole were disqualified).

Therefore, as to the alleged provision of inadequate process, because Plaintiff has

failed to sufficiently allege the deprivation “of any liberty to which he was entitled, no

particular process was constitutionally required.” Templeman, 16 F.3d at 371. 

4. Loss of Good-time Credits

With respect to the loss of Plaintiff’s good-time credits, the Constitution does not

guarantee good-time credits, Wolff v. McDonnell, 418 U.S. 539, 557 (1974), and Plaintiff

is not entitled to earn good-time credits pursuant to Colorado law, Duncan v. Gunter, 15

F.3d 989, 992 (10th Cir. 1994). Furthermore, good-time credits do not affect an inmate's

release date, but rather only affect the date on which the inmate is considered for parole.

See Fultz v. Embry, 158 F.3d 1101, 1103 (10th Cir. 1998). An inmate's release on parole

is purely discretionary. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). Therefore,

the deprivation of good-time credits does not unconstitutionally prolong an inmate's

sentence or implicate a constitutional right. See Wirsching v. Colorado, 360 F.3d 1191,

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1203–04 (10th Cir. 2004); Templeman, 16 F.3d at 370; see also Lustgarden v. Gunter, 779

F. Supp. 500, 503 (D. Colo. 1991) (noting that Colorado's statutory scheme regarding a sex

offender's accrual of good-time credits does not create a liberty interest). Because Plaintiff

has failed to allege the deprivation of a liberty interest, it is unnecessary to consider

whether Plaintiff received the adequate level of process. See Bunner v. Koch, 08-cv00171-WYD-KLM, 2009 WL 798550, at *12 (D. Colo. Jan. 30, 3009).

B. Fifth Amendment

Plaintiff's second claim alleges that Defendants violated his Fifth Amendment right

against self-incrimination by intentionally imposing sex offender conditions when he refused

to admit to past sexual misconduct, even though he was never charged with such

misconduct. See Compl. [# 1] at 6. 

The Fifth Amendment states that no person “shall be compelled in any criminal case

to be a witness against himself.” U.S. Const. amend. V. The United States Supreme Court

has held that the Fifth Amendment privilege against self-incrimination is “to be enforced

against the States under the Fourteenth Amendment according to the same standards that

protect those personal rights against federal encroachment.” Malloy v. Hogan, 378 U.S.

1, 10–11 (1964). The United States Supreme Court has further held that “a violation of the

constitutional right against self-incrimination occurs only if one has been compelled to be

a witness against himself in a criminal case.” Chavez v. Martinez, 538 U.S. 760, 770

(2003).

Here, Plaintiff argues that he was placed in orange-pants status and removed from

the general prison population because he refused to sign the SOTMP paperwork. See

Compl. [#1] at 6. He argues that his right against self-incrimination was violated because

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he was provided with two unattractive choices: admit to sexual misconduct by signing the

SOTMP paperwork or be placed in orange-pants status and be denied certain privileges

of prison life because of that status. Id. Plaintiff, however, has alleged no facts indicating

that he was “compelled to be a witness against himself in a criminal case.” Chavez, 538

U.S. at 770. Therefore, Plaintiff's claim pursuant to the Fifth Amendment fails as a matter

of law. See Edmond v. Clements, No. 11-cv-00248-RBJ-KLM, 2012 WL 2523077, at *6 (D.

Colo. Jan. 19, 2012) (finding the same on similar facts).

C. Eighth Amendment

Plaintiff claims that by classifying him as a sex offender, Defendants have violated

his Eighth Amendment rights. See Compl. [# 1] at 7. Specifically, Plaintiff alleges that

Defendants are using orange-pants status as a disciplinary measure and that by being

labeled a sex offender, his life and well-being are in danger from other offenders who

automatically target those in orange-pants status. See id. According to Plaintiff,

Defendants' actions inflict suffering, grief, and mental distress on him because he is in “a

situation fraught with danger.” Id. 

The Eighth Amendment requires prison officials “to provide humane conditions of

confinement by ensuring inmates receive the basic necessities of adequate food, clothing,

shelter, and medical care and by taking reasonable measures to guarantee the inmates'

safety.” Barney v. Pulsipher, 143 F.3d 1299, 1310 (10th Cir. 1998) (citation omitted). An

Eighth Amendment claim has both an objective and subjective element. Id. The objective

component requires that the alleged deprivation be “sufficiently serious.” Wilson v. Seiter,

501 U.S. 294, 298 (1991). However, prison conditions may be “restrictive and even harsh”

without a constitutional violation occurring. Barney, 143 F.3d at 1311 (citation omitted).

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That is, “only those deprivations denying the minimal civilized measures of life's necessities

. . . are sufficiently grave to form the basis of an Eighth Amendment violation.” Wilson, 501

U.S. at 298 (internal citation omitted). To satisfy this element, the inmate must allege facts

showing a deprivation of “a single, identifiable human need such as food, warmth, or

exercise . . . .” Id. at 304.

The subjective component is satisfied only if the “‘[prison] official knows of and

disregards an excessive risk to inmate health and safety.’“ Barney, 143 F.3d at 1310

(quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). “It is not enough to establish that

the official should have known of the risk of harm.” Id. Instead, “the official must both be

aware of facts from which the inference could be drawn that a substantial risk of serious

harm exists, and he must also draw the inference.” Farmer, 511 U.S. at 838. When

considering these components, the Court's inquiry turns not only on the severity of the

alleged deprivation, but also on its duration. See Barney, 143 F.3d at 1311 (“An important

factor in determining whether the conditions of confinement meet constitutional standards

is the length of the incarceration.”).

Plaintiff claims that labeling him a sex offender and requiring him to live in orangepants status is cruel and unusual punishment. See Compl. [#1] at 7. However, losing

certain privileges as the consequence of CDOC classification as a sex offender does not

amount to cruel and unusual punishment. See Gwinn, 354 F.3d at 1228. To the extent

that certain restrictions on prisoners are “restrictive or even harsh,” they are often the

natural consequences of crimes for which the prisoners were sentenced. Rhodes v.

Chapman, 452 U.S. 337, 347 (1981).

Plaintiff alleges that his life and well-being are being placed in jeopardy by his sex

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 See Marotta v. Cortez, No. 08-cv-00668-ZLW-KMT, 2009 WL 2009000, at *2 (D. Colo.

July 9, 2009) (dismissing with prejudice a self-incrimination claim pursuant to the Fifth Amendment

where the claim lacked legal merit and could not be rescued by amendment of the complaint).

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offender classification. See Compl. [# 1] at 7. Because Plaintiff has not identified any

actual threats, this is not a valid Eighth Amendment claim. See Riddle v. Mondragon, 83

F.3d 1197, 1205 (10th Cir.1996). Plaintiff has not alleged any instances of threats, verbal

harassment, or abuse, which could constitute an Eighth Amendment violation pursuant to

42 U.S.C. § 1983. McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); Abeyta v.

Chama Valley Indep. Sch. Dist. No. 19, 77 F.3d 1253, 1256 (10th Cir. 1996). 

Plaintiff's sex offender status does not constitute cruel and unusual punishment.

See Quintana v. Doe, No. 09-cv-00946-CMA-KLM, 2010 WL 2650047, at *7 (D. Colo. Apr.

14, 2010) (finding the same on similar facts). Therefore, Plaintiff's claim pursuant to the

Eighth Amendment fails as a matter of law.

IV. Conclusion

For the foregoing reasons, the Court respectfully RECOMMENDS that Defendants’

Motion [#13] be GRANTED IN PART and DENIED IN PART. 

The Court further RECOMMENDS that Plaintiff’s claims pursuant to the Fourteenth

and Eighth Amendments be DISMISSED WITHOUT PREJUDICE, with the exception of

Plaintiff’s Fourteenth Amendment due process claim regarding the imposition of his

classification as a sex offender.

The Court further RECOMMENDS that Plaintiff’s claim pursuant to the Fifth

Amendment be DISMISSED WITH PREJUDICE.

7

IT IS HEREBY ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have

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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 Corr., 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).

Dated: August 1, 2012

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