United States District Court, D. Colorado
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Edward Allen, aka Edward Clutts, is in the custody of the Colorado Department of Corrections (CDOC) at the Colorado Territorial Correctional Facility in Cañon City, Colorado. Plaintiff initiated this action by filing pro se a Prisoner Complaint pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983.
On June 9, 2014, Magistrate Judge Boyd N. Boland reviewed the Complaint and determined that it was deficient because the allegations failed to comply with Rule 8 of the Federal Rules of Civil Procedure and did not allege the personal participation of each named Defendant in a deprivation of Plaintiff's constitutional rights. Magistrate Judge Boland therefore directed Mr. Allen to file an amended complaint within thirty days. Plaintiff filed his Amended Complaint on July 11, 2014. (ECF No. 12).
Mr. Allen has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to dismiss sua sponte an action at any time if the action is frivolous or seeks monetary relief against a defendant who is immune from such relief. 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. Neitzke v. Williams, 490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Plaintiff 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). The Court, however, should not act as a pro se litigant's advocate. See Hall, 935 F.2d at 1110. For the reasons discussed below, the Amended Complaint and this action will be dismissed.
Mr. Allen asserts three claims for relief in the Amended Complaint: (1) that he has twice been denied parole by the Colorado Parole Board, in violation of his Fifth, Eighth and Fourteenth Amendment rights because Defendant Colorado Sex Offender Management Board (SOMB) has deemed him non-compliant with the CDOC's sex offender treatment program (SOTP) due to his refusal to admit guilt to a sex offense; (2) unidentified prison officials have retaliated against him in violation of the Constitution by denying him a higher paying prison job because of his refusal to admit guilt to a sex offense; and, (3) the Defendant Warden Designee of Sterling Correctional Facility has acted with deliberate indifference to his safety by intentionally placing him in a living unit with Security Threat Group (STG) inmates who assaulted him because he is a sex offender. Mr. Allen asks the Court to order the Defendant Parole Board to release him on parole and to declare that Defendant CSMB has no authority to demand his admission to a sex offense as a condition of sex offender treatment. He also seeks monetary relief from all of the Defendants.
I. Request for Habeas Relief and Applicability of Heck
Mr. Allen's request for release on parole is not cognizable in a civil rights action under 42 U.S.C. § 1983. See McIntosh v. U.S. Parole Comm'n, 115 F.3d 809, 812 (10th Cir.1997) ("A habeas corpus proceeding attacks the fact or duration of a prisoner's confinement and seeks the remedy of immediate release or a shortened period of confinement. In contrast, a civil rights action attacks the conditions of the prisoner's confinement and requests monetary compensation for such conditions." (quotation and alteration omitted)); Preiser v. Rodriguez, 411 U.S. 475, 489 (1973) (a prisoner in state custody cannot use a § 1983 action to challenge "the fact or duration of his confinement."); see also Wolff v. McDonnell, 418 U.S. 539, 554 (1974); Heck v. Humphrey, 512 U.S. 477, 481 (1994); Edwards v. Balisok, 520 U.S. 641, 648 (1997). Accordingly, Mr. Allen must file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 in a separate proceeding and allege that the execution of his sentence violates federal law to seek earlier release from prison. See Davis v. Roberts, 425 F.3d 830, 833 (10th Cir. 2005). However, he may not challenge the conditions of his confinement in that action.
Further, Mr. Allen may not seek damages in a § 1983 action based on the denial of parole because a ruling in his favor would necessarily imply the invalidity of the Parole Board's decision. See Heck, 512 U.S. at 486-87; see also Waeckerle v. Oklahoma, No. 01-5199, 37 F.Appx. 395, 397 (10th Cir. April 12, 2002) (unpublished) (citing Schafer v. Moore, 46 F.3d 43, 44-45 (8th Cir.1995) (holding that Heck requirement applies to § 1983 actions challenging denial of parole)). Plaintiff does not allege any facts to demonstrate that the decision on his parole application has been invalidated. As such, Mr. Allen cannot maintain any claims against the Defendant Parole Board or the individual Parole Board members-Denise Balzic, Joe Morales and Brandon Shaffer-in this § 1983 action.
Mr. Allen also challenges Defendant SOMB's requirement that he admit guilt to a sex offense in order to complete the SOTP. The Court construes the Amended Complaint liberally to include this allegation as part of Plaintiff's first claim for relief. The claim is not barred by the rule of Heck because success in this § 1983 action would not necessarily demonstrate the invalidity of Plaintiff's ongoing confinement. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (recognizing that "a state prisoner's § 1983 action 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."); see also id. at 82 (holding that the respondents (state prisoners) could challenge the constitutionality of state parole procedures in a § 1983 action because success on the claims would, at most entitle them to speedier or new consideration for discretionary parole); Beebe v. Heil, 333 F.Supp.2d 1011, 1015 (D. Colo. 2004) (concluding that prisoner's due process claim challenging his termination from the SOTP was raised properly under § 1983 because "even if Plaintiff prevails and progresses through the treatment program, discretion over the length of his sentence will continue to rest with the parole board.").
In Colorado, the Colorado Parole Board has "unlimited discretion to grant or deny parole" for defendants serving sentences for crimes committed on or after July 1, 1985. See Mulberry v. Neal, 96 F.Supp.2d 1149, 1150 (D. Colo. 2000) (citing Thiret v. Kautzky, 792 P.2d 801, 805 (Colo.1990)). Mr. Allen was sentenced in July 2004 to an indefinite term of 10 years to life. See http://www.doc.state.co.us/oss. He was eligible for parole in June 2012. See id.
Assuming that Mr. Allen was sentenced under the Sex Offender Lifetime Supervision Act of 1998 (SOLSA), COLO. REV. STAT. § 18-1.3-1001, et seq.,  he is not entitled to parole on a date certain. According to the Colorado Supreme Court, the Parole Board's ability to grant or deny parole under the § 18-1.3-1006(1), C.R.S., is discretionary:
On completion of the minimum period of incarceration specified in the sex offender's indeterminate sentence, less any credits earned by him, the [SOLSA] assigns discretion to the parole board to release [a defendant] to an indeterminate term of parole of at least ten years for a class four felony, or twenty years for a class two or three felony, and a maximum of the remainder of the sex offender's natural life.
Vensor v. People, 151 P.3d 1274, 1276 (Colo.2007). See also People v. Oglethorpe, 87 P.3d 129, 136 (Colo.App. 2003) (stating that "[t]he decision to grant parole or absolute release to an inmate incarcerated for an indeterminate sentence under the [SOLSA] is vested within the sound discretion of the state parole board"). The Tenth Circuit Court of Appeals has also found that the Colorado Parole Board's ability to grant or deny parole under § 18-1.3-1006(1), C.R.S., is discretionary. See Beylik v. Estep, 377 F. Appx. 808, 2010 WL 1916414, at *3 (10th Cir. May 13, 2010) (unpublished) (stating that the decision to grant parole under the [SOLSA] is "wholly discretionary" and thus "does not create a liberty interest entitled to due process protection").
In short, success on Mr. Allen's first claim for relief, as asserted against Defendant SOMB, would not necessarily demonstrate the invalidity of his continued detention because he is not entitled to parole under Colorado law, even if he does complete the ...