Opinion
Case No. 07-4049-JAR.
October 24, 2007
MEMORANDUM AND ORDER
Plaintiff Milton Lee filed this 42 U.S.C. § 1983 action against defendants Keven Pellant, Marilyn Scafe and Paul Feliciano alleging defendants failed to provide him with a written statement supporting the decision to hold him for a final parole violation hearing in violation of K.A.R. 44-9-105(f), resulting in a denial of due process under the Fourteenth Amendment. This matter is before the Court on defendants' Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. 6). For the reasons explained in detail below, defendants' motion is granted.
I. Plaintiff's Complaint
Because plaintiff appears pro se, the Court must remain mindful of additional considerations. A pro se litigant's pleadings are to be construed liberally and held to a less stringent standard than pleadings drafted by lawyers. Thus, if a pro se plaintiff's complaint can reasonably be read "to state a valid claim on which the plaintiff could prevail, it [the court] should do 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." However, it is not "the proper function of the district court to assume the role of advocate for the pro se litigant." For that reason, the court should not "construct arguments or theories for the plaintiff in the absence of any discussion of those issues," nor should it "supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on plaintiff's behalf." With these standards in mind, the Court summarizes plaintiff's Complaint as follows.
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21 1972)).
Id.
Id.
Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991).
Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
On November 23, 2005, plaintiff was arrested on a parole violation warrant. On November 29, 2005, plaintiff was granted a "preliminary hearing" regarding the sufficiency of the accusations of violation. The hearing was continued until December 19, 2005, when plaintiff could be represented by an attorney. At the preliminary hearing, it was determined that probable cause existed to believe that plaintiff had violated his parole, and he was ordered to be held pending a final hearing. Plaintiff claims that he was not given written notice of the findings at the preliminary hearing, in violation of the Kansas Administrative Regulations.
On January 12, 2006, plaintiff submitted what he titled an "emergency grievance" to defendant Keven Pellant, a Deputy Secretary of Corrections. In his grievance, plaintiff complained of a delay in receiving his hearing and a lack of specificity in the findings at the preliminary hearing.
Defendants Scafe and Feliciano conducted the final revocation hearing on February 7, 2006, and revoked defendant's parole for the same reasons as stated at the preliminary hearing.
II. Rule 12(b)(6) Standard
III. Discussion
Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974 (2007); Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007).
Neitzke v. Williams, 490 U.S. 319, 326 (1989).
Bell Atlantic, 127 S.Ct. at 1964-65.
Id. at 1965.
Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
Bell Atlantic, 127 S.Ct. at 1965 (citations omitted).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
"Section 1983 does not . . . provide a basis for redressing violations of state law, but only for those violations of federal law done under the color of state law." Thus, only if federal law required the submission of detailed written reasons for detention pending parole hearings does plaintiff have a cognizable claim under Section 1983. Federal law does not impose such a requirement. Because plaintiff's allegations stem from a violation of Kansas administrative regulations, § 1983 provides no basis for redressing this alleged violation of state law. Because plaintiff's complaint fails to state a claim for relief under § 1983, defendants' motion to dismiss is granted.
Jones v. City and County of Denver, 854 F.2d 1206, 1209 (10th Cir. 1988) (emphasis in the original) (citing Gomez v. Toledo, 446 U.S. 635, 640 (1980)).
See Love v. McKune, 33 Fed. App'x 369, 2002 WL 126997, at *2 (10th Cir. Feb. 1, 2002) (dismissing plaintiffs' § 1983 claim for prison "involuntary behavioral modification system" allegedly in conflict with various Kansas administrative regulations); Gragg v. McKune, 82 F.3d 425 (table), 1996 WL 165354, at *1 (10th Cir. Apr. 9, 1996) ("To the extent that plaintiff is seeking relief for alleged violations of Kansas Administrative Regulations, he has failed to state a claim upon which relief can be granted under § 1983.") (citing Jones, 854 F.2d at 1209).
IT IS THEREFORE ORDERED BY THE COURT that defendants' Motion to Dismiss plaintiff's civil rights complaint (Doc. 6) is GRANTED.
IT IS SO ORDERED.