                                                                                   FILED
                                                                       United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                          Tenth Circuit

                              FOR THE TENTH CIRCUIT                         February 19, 2016
                          _________________________________
                                                                           Elisabeth A. Shumaker
                                                                               Clerk of Court
C. M.,

      Plaintiff - Appellant,

v.                                                           No. 15-1067
                                                    (D.C. No. 1:13-CV-01878-RBJ)
CHRISTOPHER URBINA; REBECCA                                   (D. Colo.)
JORDAN; NANCY WOLFF; PATRICIA
MOSHURE; RACHELLE BOESPFLUG;
MELISSA EVERTS; JASON JOHNSON,

      Defendants - Appellees.
                      _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before HARTZ, BALDOCK, and HOLMES, Circuit Judges.
                  _________________________________

         Plaintiff-appellant C.M., a registered sex offender, brought this action pursuant

to 42 U.S.C. § 1983 asserting one claim against four public-health officials and

another claim against three probation officers. He appeals the dismissal on qualified

immunity grounds of both claims. Exercising jurisdiction under 28 U.S.C. § 1291,

we affirm.


         *
        After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
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 This order and judgment is not binding precedent,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.
I. Background

      In 2002, C.M. pleaded guilty to two counts of sexual assault and was

sentenced to twenty-five years of probation. As a condition of his probation, he was

required to complete sexual-offense-specific therapy. He enrolled and began

participating in a treatment program with Aurora Mental Health. Other conditions of

his probation included that he disclose to potential romantic partners his status as a

registered sex offender by the third date, and that he disclose to his treatment

provider his intention to enter into a sexual relationship and obtain permission to do

so.

      In 2005, C.M. tested positive for human immunodeficiency virus (HIV). In

2006, he tested positive, and was treated, for chlamydia. Despite the treatment, after

his initial positive test, C.M. repeatedly tested positive for chlamydia for some time

until he was cured with a more rigorous antibiotic therapy. Per state law, the positive

test results for HIV and chlamydia were reported to the Colorado Department of

Public Health and Environment (CDPHE). Colo. Rev. Stat. § 25-4-402.

      The CDPHE contacted C.M. in 2010 and, in the process of trying to locate

him, learned he was a registered sex offender. When C.M. met with defendant Pat

Moshure, a CDPHE employee, she asked him to sign a release to allow the CDPHE

to share information about his HIV status with Aurora Mental Health. He declined to

do so and was then offered a choice between participating in ten sessions of

risk-reduction counseling or being subject to a public health order. C.M. chose the

counseling. He was referred to a counselor who told him she would not begin the

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counseling sessions unless he signed a release allowing her to share information with

Aurora Mental Health and his probation officer. C.M. refused to do so, and no

counseling sessions took place.

      C.M. later learned that the referral letter from Ms. Moshure to the counselor

advised that most of his sex partners were younger men, that a number of charges had

been made against him for failing to disclose his HIV status before having sex, and

that the CDPHE “would like to see [the counselor] address the dating younger men

issue and tie that into nondisclosure.” Aplt. App. at 28 (internal quotation marks

omitted). According to the third amended complaint, Ms. Moshure disapproved of

C.M. choosing younger sex partners and was trying to make him choose older ones.

      Later in 2010, the CDPHE contacted C.M. again and served him with a

notice-of-counseling order. The order stated that health professionals had received

reports of C.M. failing to disclose his HIV status before having sex on at least three

occasions and that he continued to “demonstrate behavior that endangers the health

of others.” Id. at 30 (internal quotation marks omitted). C.M. denies these

allegations, stating in the third amended complaint that he “has never engaged in

sexual relations, while on probation, without first disclosing his HIV status.” Id.

The order directed him to receive ten sessions of risk-reduction counseling from the

counselor he was referred to previously.

      In response to the order, C.M. called the CDPHE. This time he spoke with

defendant Nancy Wolff, another CDPHE employee. After he explained that he did

not want to sign the counselor’s release, Ms. Wolff advised him to comply with the

                                           3
counselor’s demand. The third amended complaint alleges that Ms. Wolff told him

this because she and other CDPHE employees were motivated by the improper goal

of making him choose older sex partners.

      In May 2011, the CDPHE served C.M. with a cease-and-desist order

demanding that he “(1) cease and desist from withholding his HIV positive status

from sex partners prior to sexual contact; (2) cease and desist from engaging in oral,

vaginal or anal sexual intercourse without proper latex condom use; and (3) cease and

desist from engaging in other behaviors that may result in HIV transmission such as

sharing injection drug use paraphernalia with other persons and donating blood,

plasma, sperm, organs or tissues.” Id. at 33-34 (internal quotation marks omitted).

Defendant Christopher Urbina, the executive director of the CDPHE, signed the

order. The third amended complaint alleges that C.M. was already complying with

those demands. Id. at 34.

      In June 2011, the CDPHE sought to enforce the cease-and-desist order by

bringing an action in state court. After two hearings, the district court entered a

written order in October 2011 mandating that C.M. comply with the three demands in

the cease-and-desist order and submit to ten sessions of risk-reduction counseling

with Aurora Mental Health, in addition to the therapy he was receiving as part of the

treatment program. The order did not require C.M. to sign a release but did state that

      the Department and Aurora Mental Health may exchange information
      regarding [C.M.’s] HIV status and whether [C.M.] is complying with
      the Department’s order, including whether [C.M.] is adequately and
      appropriately informing sexual partners about his HIV status and
      whether he has contracted other STDs transmitted in a means similar to

                                           4
        HIV. However, the Court does not find that the Department is entitled
        to know about other, unrelated, aspects of [C.M.’s] counseling at Aurora
        Mental Health, and will not permit the exchange of information outside
        the scope discussed above.

Aplee. Suppl. App. at 46.1

        Later that month, defendant Rebecca Jordan, another CDPHE employee,

disclosed to Aurora Mental Health C.M.’s HIV status as well as allegations the

CDPHE had received about C.M. having violated the terms of the cease-and-desist

order. As a result, C.M. was discharged from the treatment program in November

2011.

        Defendants Rachelle Boespflug and Jason Johnson, probation officers, then

filed a complaint for revocation of C.M.’s probation because he was no longer in

compliance with his probation requirements. C.M. was arrested and spent seventy-

seven days in jail before the state court dismissed the complaint and ordered him to

resume treatment.

        After his release, Aurora Mental Health did not allow C.M. to reenroll in the

treatment program, and three other treatment providers would not accept him either.

Defendant Melissa Everts, another probation officer, and Mr. Johnson filed a second

complaint for revocation of C.M.’s probation in March 2012. C.M. was arrested


1
  On appeal, the district court’s order was vacated in April 2013 because it was not
supported by competent evidence. Aplee. Suppl. App. at 23. A witness for the
CDPHE had testified that in seeking the order the CDPHE relied on statements from
three unnamed individuals that C.M. had not disclosed his HIV status to them before
having sex. Id. at 21. The appellate court concluded “the witness’s testimony, which
was not admitted for the truth of the matter asserted, was not legally sufficient to
sustain the CDPHE’s burden of proof in this case.” Id. at 22.
                                           5
again and jailed for seven days. In July 2012, he started another treatment program

with a different provider but had to redo some work he had already completed with

Aurora Mental Health.

      C.M. filed this action in July 2013 and the third amended complaint in June

2014. The gist of his claim against the public-health officials is that their actions

were motivated by the improper goal of preventing him from having consensual sex

with younger partners and therefore violated his rights under the First, Fourth, and

Fourteenth Amendments. His claim against the probation officers is based on the

legal theory that they failed to disclose material exculpatory information (i.e., that he

had cooperated fully in the treatment program with Aurora Mental Health but was

discharged “through no fault of his own” due to allegations by the CDPHE that the

probation officers knew lacked evidentiary support, Aplt. Opening Br. at 31-32)

when they filed revocation complaints against him, thereby violating his rights under

the Fourth and Fourteenth Amendments.

      Defendants’ motion to dismiss asserted a qualified immunity defense among

other grounds for dismissing the third amended complaint. The district court agreed

that all the defendants were entitled to qualified immunity because the complaint

failed to show they had violated C.M.’s clearly established rights.

      On appeal, C.M. argues that the district court erred by dismissing the claims

against the public-health officials because “[t]he right of homosexual adults to

associate as they themselves determine . . . is clearly established.” Id. at 17. He

argues that the claims against the probation officers should not have been dismissed

                                            6
because the omission of material exculpatory facts from the affidavits seeking

revocation of his probation and warrants for his arrest violated his clearly established

rights.

II. Analysis

          We review de novo dismissals based on qualified immunity. Stewart v. Beach,

701 F.3d 1322, 1330 (10th Cir. 2012). Where, as here, we must determine whether a

motion to dismiss was properly granted, “[w]e accept all factual allegations in the

complaint as true and draw all reasonable inferences in favor of the nonmoving

party.” Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). But purely conclusory

allegations are not entitled to be presumed true. Ashcroft v. Iqbal, 556 U.S. 662, 681

(2009). We may also consider facts subject to judicial notice, such as documents that

are matters of public record, without converting the motion to dismiss into a motion

for summary judgment. Tal v. Hogan, 453 F.3d 1244, 1265 n.24 (10th Cir. 2006).

          “In resolving a motion to dismiss based on qualified immunity, a court must

consider whether the facts that a plaintiff has alleged make out a violation of a

constitutional right, and whether the right at issue was clearly established at the time

of defendant’s alleged misconduct.” Brown v. Montoya, 662 F.3d 1152, 1164

(10th Cir. 2011) (internal quotation marks omitted). The plaintiff bears the burden of

demonstrating that the law was clearly established at the time of the alleged

violation. Herring v. Keenan, 218 F.3d 1171, 1175 (10th Cir. 2000). Courts may

address either prong of the qualified immunity analysis first. Quinn v. Young,

780 F.3d 998, 1004 (10th Cir. 2015). In dismissing C.M.’s third amended complaint,

                                             7
the district court addressed only the second prong. We agree the second prong is

dispositive in this case.

       A constitutional right is clearly established if its contours are clear enough that

a reasonable official would understand what he or she was doing violated it. Id. at

1004-05. “Ordinarily, in order for the law to be clearly established, there must be a

Supreme Court or Tenth Circuit decision on point, or the clearly established weight

of authority from other courts must have found the law to be as the plaintiff

maintains.” Thomas v. Durastanti, 607 F.3d 655, 669 (10th Cir. 2010) (internal

quotation marks omitted). Courts should not define clearly established law at a high

level of generality but instead on the basis of the specific context of the case. Quinn,

780 F.3d at 1005. General statements of law are insufficient to satisfy the “clearly

established” prong of the qualified immunity test. See Hope v. Pelzer, 536 U.S. 730,

753 (2002). Rather, the unlawfulness of the official action must be apparent in light

of the pre-existing law. Id. at 739. In determining whether a right is clearly

established, “it is crucial to look at precedent applying the relevant legal rule in

similar factual circumstances. Such cases give government officials the best

indication of what conduct is unlawful in a given situation.” Id. at 753.

A. Claim Against Public-Health Officials

       C.M.’s claim against the public-health officials has several components. First,

he argues that by referring him to counseling and later bringing suit to enforce the

cease-and-desist order, they interfered with his clearly established right to freedom of

association, including his right to choose younger men as his sex partners. Second,

                                            8
by bringing the suit for an improper purpose without any competent evidence, they

violated his clearly established right to due process. Third, by referring him to

counseling and bringing the suit, they were attempting to make him waive his clearly

established right to privacy in his medical records. Fourth, by disclosing his medical

information to the counselor and Aurora Mental Health, they violated his clearly

established right to privacy.

       In arguing that the public-health officials violated his clearly established

rights, C.M. relies heavily on Lawrence v. Texas, 539 U.S. 558 (2003), which held

that a state statute making it a crime for two persons of the same sex to engage in

certain intimate sexual conduct was unconstitutional. More broadly, the case stands

for the proposition that in the absence of a legitimate government interest, individuals

have the right to engage in private conduct without government intervention into

their personal lives. Id. at 578.

1. Freedom of Association

       C.M. argues broadly that under Lawrence, the public-health officials should

have known that their attempts to interfere with his personal life violated his clearly

established rights. However, he fails to explain with any specificity how Lawrence

could have put the public-health officials on notice that attempting to get him to

receive risk-reduction counseling was unlawful. See Quinn, 780 F.3d at 1005 (“We

must scrupulously adhere to our longstanding duty to ascertain clear law (clear

answers) that would apply to the situation at hand.” (internal quotation marks

omitted)). Further, although the third amended complaint alleges that the public-

                                            9
health officials attempted to limit and influence his choice of sex partners, C.M. does

not allege that any actual interference with his choice of sex partners occurred.

Nothing in the cease-and-desist order prohibits him from choosing younger sex

partners, and we are not persuaded that the action to enforce the order is analogous to

a criminal prosecution for engaging in constitutionally protected conduct. Cf.

Lawrence, 539 U.S. at 563. C.M. also fails to explain how having to receive

risk-reduction counseling or being subject to a public-health order actually infringed

on his freedom of association. Indeed, with respect to the order, C.M. alleges that he

was already in compliance with it.

      Moreover, limitations on the right of association may be justified if they serve

a compelling governmental interest. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte, 481 U.S. 537, 549 (1987). In the interest of protecting the public health, the

Colorado General Assembly has authorized public-health officials to take measures –

even restrictive enforcement measures – to prevent the spread of HIV. Colo. Rev.

Stat. § 25-4-1401. In light of the governmental interest at stake, we cannot say that

clearly established law would have put a reasonable official in the public-health

officials’ position on notice that referring C.M. to counseling or enforcing the cease-

and-desist order was unlawful. See Quinn, 780 F.3d at 1014.

2. Due Process

      Apparently relying on a legal theory akin to malicious prosecution, C.M.

seems to argue that the public-health officials violated his right to due process by

bringing the suit when they did not have competent evidence to support the issuance

                                           10
of the cease-and-desist order. However, he makes no attempt in either the third

amended complaint or his opening brief to state the elements of such a claim, much

less show that they are satisfied here. See Novitsky v. City of Aurora, 491 F.3d 1244,

1257-58 (10th Cir. 2007) (“[W]hen addressing § 1983 malicious prosecution claims,

we use the common law elements of malicious prosecution as the starting point of our

analysis . . . .” (internal quotation marks omitted)). And given that the state court

granted much of the relief requested by the CDPHE, we cannot conclude that

bringing the action violated C.M.’s clearly established due process rights.

      C.M. offers no authority, nor are we aware of any, for the proposition that

public-health officials who prevail on enforcing a cease-and-desist order in court may

yet violate an individual’s clearly established rights. The fact that the court’s

decision was overturned on appeal does not materially change the analysis. Although

the statements relied on by the CDPHE in issuing the order were later deemed

insufficient to meet its burden in court, such a determination does not amount to a

finding that the officials acted unreasonably in bringing the action in the first

instance. C.M. cites no authority to the contrary. See Herring, 218 F.3d at 1176 (“A

plaintiff cannot simply identify a clearly established right in the abstract and allege

that the defendant has violated it.” (internal quotation marks omitted)).

3. Right to Privacy – Waiver

      C.M. argues that the public-health officials’ attempts to have him release his

medical information violated his clearly established right to privacy. However, he

concedes that these attempts were unsuccessful in that he never agreed to waive his

                                           11
right to privacy and allow the CDPHE to share his medical information. In other

words, although the CDPHE attempted to make C.M. waive his privacy rights, he

never actually waived them. He cites no authority for the proposition that public-

health officials who seek a waiver of certain rights from a person who declines to

actually waive them constitutes a violation of his clearly established rights.

      Further, as a probationer, C.M. is subject to some limitations on his

constitutional rights. Herring, 218 F.3d at 1177. C.M. does not enjoy the absolute

liberty to which other citizens are entitled, but only conditional liberty subject to

restrictions. United States v. Warren, 566 F.3d 1211, 1215 (10th Cir. 2009) (citing

Griffin v. Wisconsin, 483 U.S. 868, 874 (1987)). As a registered sex offender, he is

subject to additional restrictions on his private conduct and privacy. Again, his

reliance on Lawrence is misplaced given that the facts of that case bear little

resemblance to those in this case. Thus, Lawrence does not support the conclusion

that the public-health officials reasonably should have known that their conduct was

unlawful.

4. Right to Privacy – Disclosure

      Relying on Herring, C.M. also argues that the public-health officials violated

his clearly established right to privacy by disclosing his medical information to the

counselor and to the probation officers. We disagree. In Herring, a probation

officer’s disclosure of information about a probationer’s HIV status to his sister and

employer was found to have violated his right to privacy. 218 F.3d at 1175.

However, the court went on to conclude that the probationer failed to demonstrate the

                                           12
contours of that right were sufficiently clear when the disclosures were made. Id. at

1179.

        Assuming that Herring established a clear right to privacy with regard to one’s

HIV status in a general sense, we conclude the public-health officials here were

presented with different factual circumstances such that it was not apparent that their

limited disclosures were unlawful. When the CDPHE “knows or has reason to

believe . . . that a person has HIV infection and is a danger to the public health,” it is

authorized to issue an order requiring that person “to report to a qualified physician

or health worker for counseling on the disease and for information on how to avoid

infecting others . . . .” Colo. Rev. Stat. § 25-4-1406(2)(b). And although public

health reports are considered “strictly confidential information,” “[r]elease may be

made of such information to the extent necessary to enforce . . . rules and regulations

concerning the treatment, control, and investigation of HIV infection by public health

officials.” Id. § 25-4-1404(1)(b). It is hard to fathom how the CDPHE could

exercise its authority under these statutes without disclosing a person’s HIV status

and the reasons for referring that person to counseling. Thus, we cannot conclude

that Ms. Moshure’s disclosures to the counselor were clearly unlawful.

        Ms. Jordan’s disclosures to Aurora Mental Health also were not clearly

unlawful given that the CDPHE had obtained a court order expressly allowing it to

exchange “information regarding [C.M.’s] HIV status and whether . . . [C.M.] is

adequately and appropriately informing sexual partners about his HIV status . . . .”

Aplee. Suppl. App. at 46. C.M. cites no authority, nor are we aware of any, for the

                                            13
proposition that a reasonable public-health official disclosing certain information

pursuant to a court order would know that her conduct was unlawful. We agree with

the district court that C.M.’s allegations fall short of establishing that conduct by the

public-health officials violated his clearly established rights.

      Finally, in the absence of any specific allegation as to what information the

CDPHE disclosed that was outside the parameters of the court’s order, we decline to

conclude that the public-health officials violated the order. C.M.’s allegation that the

CDPHE disclosed more than the court order permitted is purely conclusory; thus, we

are not bound to accept it as true for the purpose of this appeal. See Iqbal, 556 U.S.

at 681.

B. Claim Against Probation Officers

      With respect to his second claim, C.M. argues that the probation officers

violated his clearly established rights by failing to include material exculpatory

information when they submitted affidavits in support of revoking his probation and

issuing warrants for his arrest. We disagree. According to the third amended

complaint, both times the probation officers filed complaints to revoke C.M.’s

probation, he admittedly was not in compliance with the requirement that he be in a

treatment program. Aplt. App. at 40 (“The probation officers filed the probation

revocation complaint as a result of C.M.’s termination from treatment.”). Moreover,

the complaint does not allege that the probation officers had anything to do with

C.M.’s discharge from the treatment program with Aurora Mental Health. Indeed,

the complaint alleges the disclosures by the CDPHE caused him to be discharged.

                                            14
       C.M. correctly points out that knowingly or recklessly omitting material

information from an arrest affidavit violates a plaintiff’s clearly established rights.

Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990). However, he provides no

authority for the proposition that these probation officers had a duty to disclose that

he was “improperly terminated” from the treatment program. We are not required to

accept C.M.’s bald allegation that the termination was improper. See Iqbal, 556 U.S.

at 681 (“It is the conclusory nature of respondent’s allegations . . . that disentitles

them to the presumption of truth.”). Further, the prohibition against deliberately

omitting information from an arrest affidavit “does not extend to immaterial

omissions” that would not have vitiated probable cause. Stewart, 915 F.2d at 583.

Given the undisputed fact that C.M. was not in compliance with a requirement of his

probation, there was probable cause to file the complaints and issue the warrants.

The alleged omissions were therefore immaterial, and the probation officers were

entitled to qualified immunity.

III. Conclusion

       The judgment of the district court is affirmed.


                                             Entered for the Court


                                             Bobby R. Baldock
                                             Circuit Judge




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