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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Senior Judge Richard P. Matsch 

Civil Action No. 11-cv-02594-RPM 

DALE GROSS, 

Plaintiff, 

v. 

GUILERRMO SAMUDIO, Community Parole Officer, in his personal capacity; 

IAN SWEENEY, Community Parole Officer, in his personal capacity; 

JENNIFER DUNCAN, Community Parole Officer, in her personal capacity; 

ANTHONY YOUNG, Chair 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; 

PATRTICIA BAN WAAK, Member of the Parole Board, in her personal capacity; 

JOHN O’DELL, Member of the Parole Board, in his 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 DOES Numbers 1-2, unknown officers of RSA, Inc.; 

WALTER T. SIMON, President of Progressive Therapy Systems, P.C. 

JOHN DOES Numbers 3-4, unknown officers of Progressive Therapy Systems, P.C.; 

FREDERICK E. TOLSON, President of Sexual Offense Resource Services, LLC; 

JOHN DOES Numbers 5-6, unknown officers of Sexual Offense Resource Services, LLC’ 

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 GRANTING DEFENDANT WALTER T. SIMON’S MOTION TO DISMISS 

 Plaintiff Dale Gross was classified as an S-4 sex offender by the Colorado 

Department of Corrections when he entered prison in 2000, even though he had not been 

convicted of a sex offense. His court challenges to that classification were rejected. Gross 

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was released from prison in August 2008 and, pursuant to his sentence, was subject to five 

years of mandatory parole. Gross was required to participate in offense-specific mental 

health treatment as a condition of his parole. 

Treatment for persons classified as sex offenders is regulated by the Sex Offender 

Management Board (“SOMB”), a state entity that was formed within the Colorado 

Department of Public Safety pursuant to Colorado law. See Colo. Rev. Stat. § 16-11.7-103. 

The SOMB has promulgated Standards and Guidelines for the Assessment, Evaluation, 

Treatment and Behavioral Monitoring of Adult Sex Offenders (“SOMB Standards”). The 

SOMB Standards require that an offender take responsibility for his/her conduct as part of 

the rehabilitative process. [See Doc. 19, Ex. A at 41.]1

 Progressive Therapy Systems 

(“PTS”) is a for-profit, professional corporation that provides treatment for sex offenders 

according to the SOMB Standards, pursuant to a contract with the State of Colorado. 

 Gross entered treatment with PTS in September 2008. From the beginning, he 

refused to take responsibility for his crimes and the conduct that led to his administrative 

classification as a sex offender. He was also hostile and abusive to PTS staff and other 

patients. On two occasions in early December 2008, Gross went to the Governor’s office to 

complain about being required by his parole to admit to sexual misconduct when in fact he 

had been acquitted of sexual assault, which raised the hackles of state officials, who 

demanded that Gross stay away from the State Capitol Building. Thereafter, Peter Briggs, a 

PTS clinician who oversaw Gross’ treatment, allegedly made comments to Gross such as 

“how’s the Governor doing?” during group therapy sessions. Gross subsequently lodged a 

 

1 See Tal v. Hogan, 453 F.3d 1244, 1265 n. 24 (10th Cir. 2006) (a district court may “take judicial notice of its own 

files and records, as well as facts which are a matter of public record” in considering a motion to dismiss). 

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complaint against Briggs with the Colorado Department of Regulatory Agencies (“DORA”) 

for unprofessional conduct. 

 PTS discharged Gross from treatment in January 2009. The state Parole Board 

subsequently revoked his parole and returned him to prison in February 2009. Upon Gross’ 

release in August 2009, Jennifer Duncan, his parole officer, directed him to Sex Offender 

Resource Services, LLC (“SORS”) for evaluation and treatment. SORS determined Gross 

was not amenable to offense-specific treatment because he “continued to deny any sexually 

inappropriate behavior.” The parties do not address what happened with Mr. Gross’ 

treatment from August 2009 and May 2010. 

Duncan referred Gross to RSA, another treatment provider, in May 2010. Gross did 

not pass the RSA evaluation, either. 

 On January 20, 2011, Jennifer Duncan ordered Gross to contact Teaching Humane 

Existence (“THE”), a fourth treatment provider, for an evaluation. Gross never got evaluated 

by THE because he never successfully got in contact with them (though he apparently 

attempted to). One month later, Gross was taken into custody and charged as a parole 

violator. 

 A parole revocation hearing was held on March 14, 2011. The hearing officer 

recommended that Gross not be returned to prison so long as he enrolled in treatment at one 

of the four SOMB-approved providers in Denver—PTS, SORS, RSA or THE. However, the 

providers all declined to enroll Gross into treatment. Plaintiff alleges, upon information and 

belief, that Defendant Walter T. Simon, President of PTS, made the decision to reject Gross’ 

enrollment on PTS’ behalf. Because Gross could not be enrolled in treatment, the Parole 

Board returned him to prison for 180 days on April 4, 2011. 

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 Plaintiff initiated this action against the above-captioned Defendants under 42 U.S.C. 

§ 1983, alleging that Defendants violated his First, Fifth and Fourteenth Amendment rights 

when they refused to enroll him into treatment. Walter Simon has moved to dismiss Gross’ 

claims against him. 

Section 1983 provides a remedy for federal constitutional and statutory deprivations 

by a person acting “under color of any statute, ordinance, regulation, custom, or usage, of 

any State or Territory.” 42 U.S.C. § 1983. To find state action, two general requirements 

must be fulfilled. First, “the deprivation 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”; second, the 

defendant must “fairly be said to be a state actor.” Lugar v. Edmonson Oil Co., 457 U.S. 

922, 937 (1982). 

There is no allegation that Simon’s decision to deny Gross treatment was an exercise 

of some right or privilege created by the State, or that it was made pursuant to a rule of 

conduct imposed by the State. Plaintiff cites to no state statute, regulation or rule of decision 

invoked by Simon, either explicitly or implicitly. While PTS—and, by extension, Simon—

are regulated by the SOMB in how they evaluate and treat sex offenders, there is no 

allegation suggesting that the SOMB dictates their decisions as to whether to accept a 

referred offender for treatment. As far as the Court can tell, that decision rests purely within 

PTS’ private discretion. Thus, the Court concludes that Gross has not satisfied the first stateaction requirement.2

 Accordingly, Walter Simon did not act under color of state law for the 

purposes of 42 U.S.C. § 1983 and is, by consequence, not amenable to suit under that statute. 

 

2

 Plaintiff asserts that he “alleged that Mr. Simon was acting under color of state law, and the allegations in the 

Complaint must be taken as true.” [Doc. 37 at 17.] That is an incorrect statement of law. See Ashcroft v. Iqbal, 556 

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In addition, assuming Simon did act under color of state law, Plaintiff has failed to 

allege facts showing a plausible right to relief on his constitutional claims. 

 To sustain a First Amendment retaliation claim, a plaintiff must show that: (1) he 

engaged in constitutionally protected activity; (2) the government’s actions caused him 

injury that would chill a person of ordinary firmness from continuing to engage in that 

activity; and (3) the government’s actions were “substantially motivated” as a response to his 

constitutionally protected conduct. See Nielander v. Bd. of County Comm'rs, 582 F.3d 1155, 

1165 (10th Cir. 2009) (citing Worrell v. Henry, 219 F.3d 1197, 1212 (10th Cir. 2000)). 

Substantial motivation requires a plaintiff to show that “but for the retaliatory motive, the 

incident to which he refers . . . would not have taken place.” Dawson v. Johnson, 266 Fed. 

Appx. 713, 716 (10th Cir. 2008) (citation omitted). A plaintiff’s subjective belief of 

retaliation is not enough; rather, the plaintiff must establish “specific facts” showing that he 

was retaliated against. See Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998). 

Even if Gross has satisfied the first two elements of a retaliation claim, he has failed 

to allege specific facts that, if proven, would show that Simon’s refusal to accept him into 

PTS’ treatment program was substantially motivated by Gross’ grievances to Colorado 

officials. In support of his claim, Gross alleges that Walter Simon denied him entry into PTS 

because: 

[Gross] filed a DORA Complaint against Peter Briggs, he successfully challenged the 

false allegations against him (and was acquitted by a jury of all of the charges 

alleging any sexual misconduct and another charge was thrown out as a result of a 

successful post-conviction motion), he exercised his constitutional right to challenge 

the constitutionality of the terms and conditions of his parole in Gross v. Madrid, et 

al, 10-cv-1581-RPM, and he continues to challenge the constitutionality of 

 U.S. 662, 678-79 (2009) (“[T]he tenet that a court must accept as true all of the allegations contained in a complaint 

is inapplicable to legal conclusions.”). 

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compelling him to admit to and accept responsibility for S.K’s false allegations of 

sexual misconduct for which he was tried and acquitted. 

[Doc. 1 at 23-24.] 

Gross filed his DORA Complaint sometime in December or January 2008. Over two years 

passed between the DORA Complaint and Simon’s March 2011 decision. Such a prolonged 

time period does not support a retaliatory motive; indeed, the inference is that Simon’s 

decision had little, if anything, to do with Gross’ DORA Complaint. Gross “successfully 

challenged the allegations against him” before PTS first admitted him for treatment in 

September 2008, so it is implausible to believe that Simon denied him for treatment in March 

2011 for that reason. Finally, while Simon was presumably aware of Gross’ lawsuit against 

PTS and Briggs, the allegations in the Complaint support a strong inference that PTS’ prior 

treatment of Gross, during which Gross was difficult to interact with and unreceptive to the 

program, led Simon to believe that Gross would not have been successful a second time 

around. Thus, even assuming Simon held some amount of ill will towards Gross for suing 

PTS and Briggs, Plaintiff has failed to plausibly show that Simon’s actions were 

“substantially motivated” by Gross’ lawsuit. For these reasons, Gross’ First Amendment 

retaliation claim fails. Since his Fourteenth Amendment claim is essentially a restatement of 

his First Amendment retaliation theory [see Doc. 37 at 18-19], that claim fails, as well. 

 For his Fifth Amendment claim, Plaintiff must establish that: (1) the statements 

desired by Simon carried the risk or incarceration; and (2) the penalty he suffered amounted 

to compulsion. See Doe v. Heil, --- Fed. Appx. ----, 2013 WL 4504772, at *3 n.4. (10th Cir. 

Aug. 26, 2013). Plaintiff claims that Simon “[kicked] him out of sex offender treatment” 

because he exercised his Fifth Amendment right “to be free from being compelled to ‘admit’ 

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to something criminal that never happened.” [Doc. 37 at 18.] But Plaintiff does not allege 

any facts suggesting that the statements Simon allegedly sought carried the risk of 

incarceration. Because Plaintiff was acquitted of the sex offense for which he was charged, 

any statement he may have been required to give carried no such risk because the state would 

have been prohibited from re-trying him under the Fifth Amendment Double Jeopardy 

Clause. That is fatal to Gross’ Fifth Amendment claim. 

 Because the Court has concluded that Plaintiff has failed to state a claim upon which 

relief can be granted, Plaintiff requests leave to submit an amended complaint. Leave to 

amend should be freely given unless, inter alia, amendment would be futile. Foman v. 

Davis, 371 U.S. 178, 182 (1962). Plaintiff does not seek to add claims or adjust his theory, 

but presumably—he does not specify—wants to add allegations. The operative facts 

underlying Plaintiff’s First Amendment retaliation claim are clear: Simon refused to enroll 

Gross into PTS’ treatment program because Gross was, essentially, too much trouble. The 

Court does not believe that Plaintiff, having had nearly two years to develop and allege facts 

showing that Simon had a retaliatory motive, could now raise allegations plausibly 

establishing that “but for” Gross’ protected speech, Simon would not have denied Gross 

treatment at PTS. That Plaintiff does not suggest any such allegations in seeking leave to 

amend underscores the point. In addition, no additional pleading on Plaintiff’s Fifth 

Amendment claim can overcome the fact that Plaintiff was acquitted of his sexual offense, 

and therefore could not be tried again for the same conduct. For these reasons, the Court 

concludes that granting Plaintiff leave to amend his Complaint would be futile, and therefore 

denies his request. 

Upon the foregoing, it is 

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ORDERED that Defendant Walter Simon’s Motion to Dismiss is granted. The Clerk 

shall enter judgment for Defendant, dismissing all of Plaintiff’s claims and awarding costs. 

Dated: September 25, 2013 

BY THE COURT: 

s/Richard P. Matsch 

_________________

Richard P. Matsch

Senior District Judge 

 

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