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Marymee v. Executive Director of Colo. Dep't of Corrections

Court of Appeals of Colorado, Fourth Division

April 10, 2014

Wesley Marymee, Plaintiff-Appellant,
v.
Executive Director of the Colorado Department of Corrections and Warden of Arkansas Valley Correctional Facility, Defendants-Appellees

Page 285

Crowley County District Court No. 12CV2. Honorable Michael A. Schiferl, Judge.

JUDGMENT AND ORDER AFFIRMED AND CASE REMANDED WITH DIRECTIONS.

Wesley Marymee, Pro se.

John W. Suthers, Attorney General, Jacquelynn N. Rich Fredericks, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

Opinion by JUDGE BOORAS. Webb and Romá n, JJ., concur.

OPINION

Page 286

BOORAS, JUDGE.

[¶1] Plaintiff, Wesley Marymee, an inmate in the custody of the Colorado Department of Corrections (CDOC), appeals from the district court's C.R.C.P. 106.5 judgment upholding his prison disciplinary conviction. He also appeals the order denying his motion to proceed in forma pauperis and requests reimbursement for the cost incurred for the preparation of the transcript of the administrative hearing. We affirm the judgment and order, but remand the case to the district court with directions to order the CDOC to refund the cost of the hearing transcript.

I. Background

[¶2] On November 30, 2011, plaintiff was employed at Correctional Industries (CI), a for-profit division of the CDOC. See § § 17-24-101,-102, C.R.S. 2013. On that day, while plaintiff was at work, he was permitted to use the restroom at approximately 3:35 p.m. After utilizing the restroom, plaintiff noticed that it was almost 3:45 p.m. and instead of returning to the work facility, he proceeded to the staging area where the inmates waited after their shift had ended to be escorted to a security checkpoint before they were released back to their cells. Chris Sanchez, the supervisor of the CI work facility, asked plaintiff whether he was ready to leave for the day. Plaintiff responded in the affirmative. Sanchez opened the secured door, escorted him to another staging area where he was patted down, and then released plaintiff through another secured door. Joshua Hughes, who was plaintiff's direct supervisor at CI on the day in question, never excused plaintiff from work.

[¶3] Prison officials charged plaintiff with " Unauthorized Absence," which is a Class II violation under the CDOC's Code of Penal Discipline (COPD). Specifically, the notice stated that plaintiff, " [w]hile working in the CI warehouse on 9/30/11 at [approximately] [3:45 p.m.] left his assigned work area, without being properly excused by his direct supervisor." Following an evidentiary hearing, the hearing officer found plaintiff guilty of the disciplinary charge. Plaintiff filed an administrative appeal which resulted in an affirmance of the hearing officer's decision by the Administrative Head.

[¶4] Plaintiff then filed a complaint pursuant to C.R.C.P. 106.5. The district court affirmed the hearing officer's decision finding plaintiff guilty of the disciplinary charge.

II. Standard of Review

[¶5] Our review in this proceeding is limited to whether prison officials exceeded their jurisdiction or abused their discretion in imposing the disciplinary sanctions against plaintiff. See Thomas v. Colo. Dep't of Corr., 117 P.3d 7, 8 (Colo. App. 2004); see also C.R.C.P. 106(a)(4), 106.5(i)(2). We review de novo the district court's decision. See Thomas, 117 P.3d at 8.

III. Motion to Proceed in Forma Pauperis

[¶6] Plaintiff first contends that the district court abused its discretion in denying his motion to proceed in forma pauperis. We disagree.

Page 287

[¶7] Whether a litigant is indigent and thus entitled to prosecute a civil action without payment of costs, as provided in section 13-16-103, C.R.S. 2013, is generally a matter committed to the discretion of the trial court. Collins v. Jaquez, 15 P.3d 299, 301 (Colo. App. 2000). However, in civil actions brought by prison inmates, the district court's discretion is limited by section 13-17.5-103, C.R.S. 2013, one of several related statutes enacted to ...


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