Opinion
Civil Action No. 19-cv-00372-LTB
04-25-2019
KEITH E. CASSELL, Plaintiff, v. MARY CARLSON, Manager of Offender Time/Release Operations of the CDOC, in Her Individual Capacity, Defendant.
RECOMMENDATION REGARDING DISMISSAL
This matter comes before the Court on the Prisoner Complaint (ECF No. 1). Plaintiff proceeds pro se. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 11). The Court has considered the entire case file, the applicable law, and is sufficiently advised in the premises. This Magistrate Judge respectfully recommends that the Complaint be dismissed with prejudice.
"(ECF No. ___)" is an example of the convention I use to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). I use this convention throughout this Recommendation.
Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or recommendations to which the objections are being made. The District Court need not consider frivolous, conclusive, or general objections. A party's failure to file such written objections to proposed findings and recommendations contained in this report may bar the party from a de novo determination by the District Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83 (1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court. Thomas v. Arn, 474 U.S. 140, 155 (1985); Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
I. Procedural Background
Plaintiff, Keith E. Cassell, is in the custody of the Colorado Department of Corrections (CDOC). At the time he initiated this action on February 11, 2019, Plaintiff was incarcerated at the Trinidad Correctional Facility in Model, Colorado. Mr. Cassell has filed pro se a Prisoner Complaint, asserting a deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. (ECF No. 1). He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 4).
On February 19, 2019, the Court ordered Mr. Cassell to file an Amended Prisoner Complaint within 30 days because his original pleading failed to state an arguable claim for relief against the Defendant. (ECF No. 5). In a March 1, 2019 minute order, Mr. Cassell was granted a 30-day extension of time to comply with the February 19 Order. (ECF No. 7). His Amended Prisoner Complaint was due on or before April 19, 2019. (Id.). On March 13, 2019, the copy of the March 1 minute order sent to Plaintiff was returned to the Court as undeliverable. (ECF No. 8). A notation on the returned envelope indicated that Mr. Cassell was "no longer in custody." (Id.).
Mr. Cassell has now failed to file an Amended Prisoner Complaint as directed in the February 19 Order and March 1 minute order. Furthermore, he has not filed a notice of address change as required by the Local Rules of this Court. Therefore, the Court reviews the sufficiency of the Prisoner Complaint filed on February 11.
II. Legal Standards
The Court construes the Prisoner Complaint liberally because Mr. Cassell is not represented by an attorney. 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 will not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Mr. Cassell has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Therefore, the Court must dismiss any claims in the Complaint that are frivolous See 28 U.S.C. § 1915(e)(2)(B)(i). A legally frivolous claim is one in which the plaintiff asserts the violation of a legal interest that clearly does not exist or asserts facts that do not support an arguable claim. See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
III. Prisoner Complaint
Mr. Cassell alleges that Defendant Carlson, the CDOC Manager of Offender Time/Release Operations, calculated his sentence incorrectly, thereby depriving him of a constitutionally-protected liberty interest in applying for parole or community corrections at an earlier date. (ECF No. 1 at 6). Plaintiff states that after he filed two habeas corpus actions in the state district court challenging Ms. Carlson's improper time computations, the CDOC admitted that he had served more than two years past his parole eligibility date (PED). (Id. at 6-7 and n.6). Specifically, in response to an order to show cause issued by the state district court, the Executive Director of the CDOC stated: "[T]he CDOC has recalculated Mr. Cassell's PED in accordance with applicable statutes and controlling case law, . . . . His recalculated PED is no[w] March 10, 2017, which has now past." (Id. at n. 6). On January 29, 2019, the Colorado Parole Board granted Mr. Cassell's application for parole. (Id. at 7). Plaintiff was scheduled to be paroled on February 26, 2019. (Id.).
Mr. Cassell asserts that Defendant Carlson violated his Fourteenth Amendment due process rights and sues the Defendant, in her individual capacity, for monetary relief.
IV. Analysis
A. Applicability of Heck v. Humphrey
As an initial matter, the Court observes that Plaintiff's claim for damages based on the alleged miscalculation of his parole eligibility date does not appear to implicate the rule of Heck v. Humphrey, 512 U.S. 477 (1994).
Pursuant to Heck, if a judgment for damages necessarily would imply the invalidity of a criminal conviction or sentence, the action does not arise until the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87. In short, a civil rights action filed by a state prisoner "is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) - if success in that action would necessarily demonstrate the invalidity of confinement or its duration." Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). A prisoner's request for damages for the time he spent incarcerated beyond his authorized sentence implicates the rule in Heck unless the prisoner can show that the extended period of incarceration has been invalidated. See Kailey v. Ritter, No. 11-1372, 500 F. App'x 766, 768-69 (10th Cir. 2012) (§1983 complaint by prisoner challenging failure to award meritorious sentence reduction credits allegedly required under state law "necessarily impl[ies] the invalidity of his sentence" and "must be dismissed unless Mr. Kailey can show that the sentence has already been invalidated").
In the Prisoner Complaint, Mr. Cassell alleges that the CDOC admitted in a state habeas corpus proceeding that Applicant's sentence was computed improperly. Plaintiff's PED was recalculated and he was paroled on February 26, 2019. If Heck applies to erroneous PED calculations, Plaintiff's due process claim is not barred by the rule of Heck because Plaintiff prevailed in overturning the improper calculation of his PED in a state habeas corpus action.
B. Due Process Claim
Mr. Cassell claims that Defendant Carlson violated his Fourteenth Amendment due process rights in miscalculating his PED by approximately two years, which delayed his referral to community corrections and release on parole.
"The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A liberty interest may arise from the Constitution itself or it may arise from an expectation or interest created by state laws or policies. Id. The Constitution does not afford prisoners a right to be released on parole before the expiration of a valid sentence. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Mr. Cassell therefore must show that he has a liberty interest in a specific parole eligibility date under Colorado law. Id. at 12. See also Boutwell v. Keating, 399 F.3d 1203, 1213 (10th Cir. 2005) (stating that a "liberty interest in the expectancy of parole" must be expressly created by a state through its parole laws"). Absent a state- created liberty interest, "there simply is no constitutional guarantee that [determinations of parole eligibility] must comply with standards that assure error-free determinations." Greenholtz, 442 U.S. at 7.
The CDOC's inmate locator website indicates that Mr. Cassell committed his current offenses in 2002 or later and his estimated mandatory release date is September 3, 2028. See www.doc.state.co.us/oss/. For Colorado inmates who were sentenced for crimes committed on or after July 1, 1985, parole is discretionary. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo.1990) (prisoners sentenced after 1985 "may be granted or denied parole at the discretion of the Parole Board."); see also § 17-22.5-303(6), C.R.S. ("Upon an application for parole, the state board of parole . . .shall determine whether or not to grant parole . . . "); see also § 17-22.5-406(1)(d), C.R.S. (recognizing that the Parole Board's decision to release an offender on parole is discretionary).
The Court takes judicial notice of the contents of the CDOC's website. See e.g., N.M. ex rel. Richardson v. Bureau of Land Mgmt., 565 F.3d 683, 702 n. 22 (10th Cir. 2009) (taking judicial notice of information on "[t]he websites of two federal agencies").
Because the decision to parole a Colorado inmate serving sentenced for crimes committed after July 1, 1985 is discretionary, Mr. Cassell does not have a constitutionally protected liberty interest in parole under Colorado law. See Bd. of Pardons v. Allen, 482 U.S. 369, 379 n. 10 (1987) ("[S]tatutes or regulations that provide that a parole board 'may' release an inmate on parole do not give rise to a protected liberty interest."); see also Malek v. Haun, 26 F.3d 1013, 1015-16 (10th Cir.1994) (holding that Utah statute granted parole board complete discretion in making parole decisions and therefore did not create a liberty interest entitled to due process protection). And, because Mr. Cassell does not have a liberty interest in parole, he likewise has no liberty interest in the procedure used to erroneously calculate his parole eligibility date. See Greenholtz, 442 U.S. at 7. See also Pettigrew v. Zavaras, No. 12-1146, 574 F. App'x 801, 811 (10th Cir. July 30, 2014) (unpublished) (citing Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.1995) (holding that inmate who has "no liberty interest in obtaining parole..., [ ] cannot complain of the constitutionality of procedural devices attendant to parole decisions"). Accord See Elliott v. Martinez, 675 F.3d 1241, 1245 (10th Cir.2012) (noting, regarding the Due Process Clause, that "the protected interests are substantive rights, not rights to procedure").
The allegations of the Prisoner Complaint fail to state an arguable claim for relief under the Fourteenth Amendment Due Process Clause. Therefore, I recommend that the Prisoner Complaint be dismissed.
IV. Recommendation
For the reasons set forth herein, this Magistrate Judge respectfully
RECOMMENDS that the Prisoner Complaint (ECF No. 1) and this action be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B).
DATED at Grand Junction, Colorado, this 25th day of April, 2019.
BY THE COURT:
/s/_________
Gordon P. Gallagher
United States Magistrate Judge