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Conkleton v. Raemisch

United States District Court, D. Colorado

June 3, 2014

JAMES K. CONKLETON, Plaintiff,
v.
RICK RAEMISCH, Executive Director of the Colorado Department of Corrections (CDOC), in his official capacity, BRANDON SHAFFER, Chairman, Colorado Board of Parole, in his official capacity, ALFREDO PENA, Member, Colorado Board of Parole, in his official capacity, DENISE BALAZIC, Member, Colorado Board of Parole, in her official capacity, BART COX, Treatment Provider for the CDOC Sex Offender Treatment and Management Program (SOTMP), in his official capacity, MICHAEL FLOYD, Contract Polygrapher of Amich & Jenks, Inc., in his official capacity, ANN NEWMAN, Treatment Provider for the CDOC SOTMP, in her official capacity, SAMUEL DUNLAP, Treatment Provider for the CDOC SOTMP, in his official capacity, LEONARD WOODSON, Treatment Provider for the CDOC SOTMP, in his official capacity, JEFF JENKS, Contract Polygrapher/Sex Offender Management Board (SOMB) member, in his official capacity, COLTON McNUTT, Treatment Provider for the CDOC SOTMP, in his official capacity, and SOTMP TREATMENT TEAM, in its official capacity, Defendants.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Plaintiff, James K. Conkleton, is a prisoner in the custody of the Colorado Department of Corrections (CDOC). Mr. Conkleton has filed pro se a Prisoner Complaint (ECF No. 1) pursuant to 42 U.S.C. § 1983 claiming his rights under the United States Constitution have been violated. He seeks declaratory and prospective injunctive relief.

Mr. Conkleton has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 in this action. Pursuant to § 1915(e)(2)(B)(i), the Court must dismiss the action if the claims Mr. Conkleton is asserting are frivolous. 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). For the reasons stated below, the Court will dismiss the action in part as legally frivolous and in part as barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994).

The Court must construe the Prisoner Complaint liberally because Mr. Conkleton 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). If the Prisoner Complaint reasonably can be read "to state a valid claim on which the plaintiff could prevail, [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." Hall, 935 F.2d at 1110. However, the Court should not be an advocate for a pro se litigant. See id.

Mr. Conkleton is a convicted sex offender serving an indeterminate sentence of ten years to life in prison under Colorado's Lifetime Supervision Act (LSA). He contends that he is required to participate in sex offender treatment as part of his prison sentence. The following allegations regarding sex offender treatment within the CDOC are helpful in understanding Mr. Conkleton's constitutional claims.

5. In the CDOC, sex offender treatment is administered by the Sex Offender Treatment and Monitoring Program, (SOTMP), which is governed by Administrative Regulation, (AR), 700-19.
6. Under the LSA, sex offenders must meet specific treatment goals or criteria as defined in AR 700-19, in order to be deemed eligible for a recommendation for parole release from the CDOC's SOTMP. Specifically, under Colo. Rev. Stat. § 18-1.3-1006, at each parole hearing, the CDOC, through it's [sic] SOTMP is required to make recommendations to the Board of Parole regarding whether the perspective [sic] parole applicant should be released on parole.
7. The criteria for parole release, established by the [Sex Offender Management Board (SOMB)], consist of seven distinct elements. The CDOC has defined those elements in AR 700-19. One of those elements requires that an offender achieve a non-deceptive finding on any polygraph examinations.
8. Upon information and belief, as well as personal observation, Plaintiff asserts that no sex offenders in the CDOC's Arrowhead Correctional Center, ("ACC"), has [sic] been granted release without having met each and every one of the seven criteria set out in AR 700-19.
9. Successful completion of the sex offender treatment criteria leads to the receipt of the SOTMP's positive recommendation for parole release, which consists of a Memo, often called a "Criteria Letter" reflecting that the perspective [sic] parolee has met, or is meeting SOMB/SOTMP criteria. In the absence of not meeting any one or more of the criteria, the Criteria Letter will reflect that the perspective [sic] parolee is not meeting SOMB/SOTMP criteria.

(ECF No. 1 at 7.)

Mr. Conkleton first claims that his constitutional right to due process has been violated. He alleges in support of the due process claim that he failed a non-random polygraph examination in October 2013, as well as a follow-up examination in March 2014, which led to his being "subjected to punitive restriction from associating with some offenders, limited in some of his treatment activities, and subject to extra labor without pay... in addition to not meeting the parole release criteria of having a non-deceptive polygraph" at his parole release review in April 2014. (ECF No. 1 at 9, ¶19.) Mr. Conkleton further alleges in support of the due process claim that "[t]he Defendants did not give Plaintiff notice, or the ability to rebut the polygraphs [sic] findings. No pre or post deprivation proceedings were provided to Plaintiff. Plaintiff was not allowed to marshal any facts, call any witnesses, or see any evidence the Defendants weighed their findings of guilt upon." (ECF No. 1 at 9-10, ¶20.)

The United States Constitution guarantees due process when a person is to be deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d 367, 369 (10th Cir. 1994). Mr. Conkleton does not allege that he was deprived of life or property. Therefore, the due process claim depends upon the existence of a constitutionally protected liberty interest.

The existence of a constitutionally protected liberty interest depends upon the nature of the interest asserted. See Sandin v. Conner, 515 U.S. 472, 480 (1995). A prisoner is not entitled to any procedural protections in the absence of a grievous loss. See Morrissey v. Brewer, 408 U.S. 471, 481 (1972). Generally, a liberty interest protected by due process may arise under the United States Constitution or state law. See Sandin, 515 U.S. at 483-84. However, state prisoners are not entitled to any particular degree of liberty and the Due Process Clause does not protect every change in the conditions of confinement that has a substantial adverse impact on the prisoner. See Meachum v. Fano, 427 U.S. 215, 224-25 (1976); Templeman, 16 F.3d at 369. The Constitution also does not create a protected liberty interest in a prisoner's release prior to the expiration of a valid sentence. See Swarthout v. Cooke, 131 S.Ct. 859, 862 (2011) (per curiam); ...


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