Opinion
Case No. 2:04-CV-848 TS.
January 25, 2005
AMENDED ORDER
Plaintiff, Creston H. Sickels, an inmate at the Utah State Prison, filed a pro se civil rights complaint under 42 U.S.C. § 1983. See 42 U.S.C.A. § 1983 (West 2003). Plaintiff paid the full filing fee and attempted to serve process upon Defendants. Utah County filed a motion to quash service and a motion to dismiss, asserting that it is not a proper party to this suit. Plaintiff has since stipulated to the dismissal of Utah County. Defendant Smith has also moved to quash service and to dismiss the claims against her. This case is now before the Court for screening of Plaintiff's Complaint and First Amended Complaint pursuant to 28 U.S.C. § 1915A. See 28 id. § 1915A.
ANALYSIS A. Screening Standard
Under 28 U.S.C. § 1915A(b)(1), a court shall dismiss any claims in a complaint filed by a prisoner seeking "redress from a governmental entity or officer or employee of a governmental entity" if they are "frivolous, malicious, or fail to state a claim upon which relief may be granted." Id. § 1915A(b)(1). A claim is deemed to be frivolous if "it lacks an arguable basis in either law or fact." Neitzke v. Williams, 490 U.S. 319, 325, 109 S. Ct. 1827, 1831-32 (1989). A complaint may also be legally frivolous if it is premised on an "indisputably meritless legal theory." Id. at 327, 109 S. Ct. at 1833. "Dismissal of a pro se complaint for failure to state a claim is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Perkins v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999).
When reviewing the sufficiency of a complaint the Court "presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff."Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Because Plaintiff is proceeding pro se the Court must construe his pleadings liberally and hold them to a less stringent standard than formal pleadings drafted by lawyers. Id. at 1110. However, "[t]he broad reading of the plaintiff's complaint does not relieve [him] of the burden of alleging sufficient facts on which a recognized legal claim could be based." Id. While Plaintiff need not describe every fact in specific detail, "conclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based." Id.
B. Plaintiff's Claims
Plaintiff's sole claim is that Defendant violated his constitutional right to due process by destroying exhibits used in his criminal trial without first notifying him. "The Due Process Clause applies when government action deprives a person of liberty or property." Greenholtz v. Nebraska Penal Inmates, 2 U.S. 1, 7, 99 S. Ct. 2100, 2103-04 (1978). Plaintiff's claim does not appear to be based on denial of property, as he does not allege that the destroyed evidence belonged to him. Instead, Plaintiff asserts that the evidence might have been helpful to him in challenging his term of confinement as determined by the Utah Board of Pardons and Parole. Thus, Plaintiff is apparently arguing that the allegedly wrongful disposal of evidence from his criminal trial effectively denied him liberty as protected under the Fifth and Fourteenth Amendments by hurting his chances for parole. Although Plaintiff's initial Complaint sought both declaratory and monetary relief, he seeks only declaratory judgment in his First Amended Complaint.To make out a viable civil rights claim for denial of liberty without due process under the Federal Constitution Plaintiff must allege a violation of a constitutionally protected liberty interest. It is not clear from Plaintiff's complaint exactly what liberty interest he is alleging was violated by Defendant. The only legal authority cited by Plaintiff, to show that he was entitled to due process before the exhibits from his trial were destroyed, is the now repealed Utah Rule of Judicial Administration Rule 4-207, which required counsel to be notified before exhibits from criminal trials were destroyed. See Ut. R.J. Admin. 4-207 (repealed 2003). Plaintiff apparently argues that this rule gave him a constitutionally protected liberty interest in preserving "a full and complete record" of his criminal trial for use in subsequent judicial proceedings or parole hearings. (Pl.'s Mem. Supp. Compl. at 2.) Plaintiff has not cited any legal authority to support this argument.
The Supreme Court has recognized that state statutes may create liberty interests protected by the Fourteenth Amendment right to due process. However, those interests are generally limited to "freedom from restraint, which . . . imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life," or situations "where the State's action will inevitably affect the duration of [the inmate's] sentence." Sandin v. Conner, 515 U.S. 472, 484, 487 (1995).
Plaintiff cannot show that the disposal of the exhibits from his criminal trial will inevitably affect the duration of his sentence. As Plaintiff recognizes in his pleadings, under Utah's indeterminate sentencing scheme convicts are sentenced to a statutorily prescribed range of years and it is left to the parole board to determine whether they should be granted parole prior to the expiration of the legally imposed sentence. The ultimate decision whether to grant parole is influenced by a multitude of factors, making it is impossible to determine whether the loss of the exhibits in this case will have any impact on Plaintiff's prospects for parole. Thus, Plaintiff's assertion that the disposal of those items caused his term of confinement to be lengthened is without merit.
In addition, Plaintiff is mistaken in his assertion that because exhibits from his criminal trial might be remotely relevant to his parole hearings he has a constitutional right to have those records preserved. "There 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, 99 S. Ct. 2100, 2104 (1979); also see Bd. of Pardons v. Allen, 482 U.S. 369, 373, 107 S. Ct. 2415, 2418 (1987). Nor does Utah's parole statute create a liberty interest entitling prisoners to federal constitutional protection. See Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994); accord Dock v. Latimer, 729 F.2d 1287, 1291-92 (10th Cir.) (reaching same conclusion based on predecessor Utah parole statute), cert. denied, 469 U.S. 885 (1984). Simply put, parole is a privilege, not a constitutional right. See Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.), cert. denied, 506 U.S. 1008 (1992).
Because Plaintiff is not constitutionally entitled to parole he cannot validly argue that Defendant's actions denied him due process before the parole board. In Malek, the Tenth Circuit specifically held that "the Utah parole statute does not create a liberty interest entitling [prisoners] to due process protection under the Fifth and Fourteenth Amendments of the United States Constitution and thus cannot be used as a basis for relief under § 1983." Malek at 1016. Thus, regardless of whether the exhibits from Plaintiff's criminal trial were improperly destroyed, Plaintiff cannot use their destruction as grounds for a civil rights suit under 42 U.S.C. § 1983.
CONCLUSION
Based on the foregoing analysis, the Court concludes that Plaintiff's complaint lacks any arguable basis in either law or fact. This clearly is not a case where Plaintiff's "factual allegations are close to stating a claim but are missing some important element that may not have occurred to him." Reynoldson v. Shillinger, 907 F.2d 124, 126-27 (10th Cir. 1990). Plaintiff has already had the opportunity to amend his complaint once to no avail. Thus, the Court concludes it would be futile to allow Plaintiff further opportunity to amend.Accordingly, IT IS HEREBY ORDERED that this case is dismissed as frivolous under 28 U.S.C. § 1915A(b)(1). See 28 U.S.C.A. § 1915A (West 2003).