Opinion
Case No. 2:16-CV-756 DN
04-29-2019
ROBERT R. BAKER, Plaintiff, v. UTAH BOARD OF PARDONS & PAROLE et al., Defendants.
MEMORANDUM DECISION & DISMISSAL ORDER
Plaintiff/inmate, Robert R. Baker, filed a pro se civil rights complaint, see 42 U.S.C.S. § 1983 (2019), proceeding in forma pauperis, see 28 id. 1915. The Court now screens Plaintiff's Complaint, using the standard that any claims in a complaint filed in forma pauperis must be dismissed if they are frivolous, malicious or fail to state a claim upon which relief may be granted. See id. §§ 1915-1915A.
ANALYSIS
1. Failure-to-State-a-Claim Standard
When deciding whether a complaint states a claim upon which relief may be granted, the Court takes all well-pleaded factual statements as true and regards them in a light most favorable to the plaintiff. Ridge at Red Hawk L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). Dismissal is fitting when, viewing those facts as true, the Court sees that the plaintiff has not posed a "plausible" right to relief. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008). "The burden is on the plaintiff to frame a 'complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief." Robbins, 519 F.3d at 1247 (quoting Twombly, 550 U.S. at 556). When a civil rights complaint contains "bare assertions," involving "nothing more than a 'formulaic recitation of the elements' of a constitutional . . . claim," the Court considers those assertions "conclusory and not entitled to" an assumption of truth. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (quoting Twombly, 550 U.S. at 554-55). In other words, "the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." Red Hawk, 493 F.3d at 1177 (italics in original).
The Court construes pro se "'pleadings liberally,' applying a less stringent standard than is applicable to pleadings filed by lawyers. Th[e] court, however, will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citations omitted). The Tenth Circuit holds that, if the pleadings can reasonably be read "to state a valid claim on which the plaintiff could prevail, [they should be read] so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Still, "the proper function of the district court [is not] to assume the role of advocate for the pro se litigant." Id.; see also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir. 1998) (citing Dunn v. White, 880 F.2d 1188, 1197 (10th Cir. 1989) (per curiam)). Dismissing the complaint "without affording the plaintiff notice or an opportunity to amend is proper only 'when it is patently obvious that the plaintiff could not prevail on the facts alleged, and allowing him an opportunity to amend his complaint would be futile.'" Curley v. Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting Hall, 935 F.2d at 1110 (additional quotation marks omitted)).
2. Improper Defendant - Affirmative Link
The complaint must clearly state what each individual defendant did to violate Plaintiff's civil rights. See Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976) (stating each named defendant's personal participation is essential allegation in civil-rights action). "To state a claim, a complaint must 'make clear exactly who is alleged to have done what to whom.'" Stone v. Albert, No. 08-2222, 2009 U.S. App. LEXIS 15944, at *4 (10th Cir. July 20, 2009) (unpublished) (emphasis in original) (quoting Robbins, 519 F.3d at 1250). Plaintiff may not name an entity or individual as a defendant based solely on supervisory position. See Mitchell v. Maynard, 80 F.3d 1433, 1441 (10th Cir. 1996) (stating supervisory status alone is insufficient to support § 1983 liability). Further, grievance denial, "by itself without any connection to the violation of constitutional rights alleged by plaintiff, does not establish personal participation under § 1983." Gallagher v. Shelton, No. 09-3113, 2009 U.S. App. LEXIS 25787, at *11 (10th Cir. Nov. 24, 2009).
Based on this standard, Plaintiff has not linked Defendant Herbert to a civil-rights violation. Defendant Herbert is thus dismissed from this action.
3. Denial of Parole
Plaintiff argues that Utah Board of Pardons and Parole members (BOP) unconstitutionally departed from state sentencing guidelines--e.g., "the matrix"--in determining whether to grant him parole. He alleges BOP did not observe his due-process rights in his parole proceedings and in denying him parole when Plaintiff thought warranted.
However, Plaintiff's allegations do not pass the screening stage of his complaint here; he has not stated a federal constitutional violation. After all, "[t]here is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). "Parole is a privilege," not a constitutional right. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992). Furthermore, it is well established that the Utah parole statute does not create a liberty interest entitling prisoners to federal constitutional protection. See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Because Plaintiff has no substantive liberty interest in parole under the Federal Constitution, he may not in this federal suit challenge procedures used to deny him parole. See Olim v. Wakinekona, 461 U.S. 238, 250 (1983). The Court thus concludes that Plaintiff fails to state a claim here.
4. Constitutionality of Utah's Indeterminate-Sentencing Scheme
Petitioner attacks the constitutionality of Utah's indeterminate-sentencing scheme. The same challenges were soundly rejected by the Tenth Circuit. See Straley v. Utah Bd. of Pardons, 582 F.3d 1208 (10th Cir. 2009), cert. denied, 559 U.S. 991 (2010). On this basis alone, the Court denies any relief on the basis of this possible (habeas-style) claim.
Petitioner's more specific challenges to BOP's authority to determine his actual term of imprisonment within his sentences are based on Blakely and Apprendi. Blakely v. Washington, 542 U.S. 296 (2004); Apprendi v. New Jersey, 530 U.S. 466 (2000). He again argues that Utah's indeterminate sentencing scheme, under which the trial judge imposes the sentence as a span of time, while the BOP determines the exact time to be served within the span, is unconstitutional.
As to Blakely and the constitutionality of indeterminate sentencing schemes, Petitioner's assertions fail. Blakely (in which the Supreme Court held, in the context of Washington's determinate sentencing scheme, that a judge could not, based on a fact found by herself and not the jury, increase a defendant's sentence beyond the statutory maximum, 542 U.S. at 308-14) is inapposite to this case, involving a state indeterminate sentencing scheme and the determination of length of imprisonment within a valid sentencing range. Further, the Supreme Court has specified that indeterminate sentencing schemes are constitutional. Blakely, 542 U.S. at 308.
Apprendi is also inapplicable. Apprendi holds that, generally, "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. Petitioner apparently uses Apprendi to argue that BOP should not have been able to "increase" his sentence without a jury's findings. However, the trial court set the sentence at the time of conviction, not during the BOP's review of the time to be served within the sentence. BOP is never able to increase Petitioner's term of service beyond his trial-court-imposed sentences of ten-years-to-life (two) and five-years-to-life (one) and one-to-fifteen-years (one) and has proposed to do nothing more. And so BOP cannot possibly violate the Constitution here, no matter how long it determines Petitioner should serve up to his life's end. Under the Federal Constitution, Petitioner has no right to ever be considered for parole or paroled.
5. Alleged Violations of State Law
Finally, the Court considers Plaintiff's possible arguments, about breach of due process and BOP guidelines in parole determinations, based on Labrum v. Utah State Bd. of Pardons, 870 P.2d 902 (1993). Labrum is Utah law and is neither controlling nor persuasive in this federal case. It is well-settled that a federal court may grant relief only for violations by state actors of the Constitution or laws of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991); Rose v. Hodges, 423 U.S. 19, 21 (1975). Errors of state law do not constitute a basis for relief. Estelle, 502 U.S. at 67; Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Plaintiff thus has no valid argument here based on state law.
CONCLUSION
The Court concludes that Plaintiff's complaint fails to state a claim upon which relief may be granted. See 28 U.S.C.S. § 1915(e)(2)(B)(ii) (2019). And amendment of the complaint would be futile.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Complaint is DISMISSED. This action is CLOSED.
DATED this 29th day of April, 2019.
BY THE COURT:
/s/_________
DAVID NUFFER
United States District Judge