United States District Court, District of Colorado
JAMES D. MANIER, Plaintiff,
COLORADO STATE BOARD OF PAROLE, COLORADO DEPARTMENT OF CORRECTIONS, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior Judge
Plaintiff, James D. Manier, is in the custody of the Colorado Department of Corrections and is incarcerated at the Four Mile Correctional Center, in Canón City, Colorado. Mr. Manier has filed a Prisoner Complaint (ECF No. 5) pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1343 asserting a deprivation of his federal constitutional and statutory rights.
Mr. Manier 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, malicious, 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 Complaint liberally because Plaintiff is not represented by counsel. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, this action will be dismissed.
Mr. Manier alleges in the Complaint that he has been incarcerated since his parole was revoked in January 1986. He further alleges that the Defendants have denied him access to the documents in his parole file, so that he is unable to prepare for his November 2015 parole hearing. Plaintiff maintains that he has repeatedly been denied parole for the past thirty years, but has never been told why or what he can do to be paroled. The Chairman of the Colorado State Board of Parole provided Mr. Manier with a list of parole criteria in a September 22, 2014 letter and instructed Plaintiff to submit his records request through his case manager, who has been designated as the Colorado Department of Corrections Open Records Liason. (ECF No. 5, at 5). However, Plaintiff’s case manager told him that she does not “have access to” his parole file. (Id. at 7). Mr. Manier asserts that he has a constitutional right to access his parole file, and that Defendants have failed to comply with his requests for information, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the “Public Records Act of 1974.” For relief, he asks the Court to order Defendants to provide him access to all Colorado Parole Board records concerning him.
I. § 1983 claims
Mr. Manier contends that he has a constitutional right to access the documents maintained by the Colorado Board of Parole in his parole file, which is cognizable under 42 U.S.C. § 1983.
Section 1983 provides a remedy for the deprivation of a constitutional right by a person acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
A. Eleventh Amendment
The Colorado State Board of Parole and the Colorado Department of Corrections are Colorado agencies and are thus entitled to Eleventh Amendment immunity, absent a waiver. See generally Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir. 1988) (the immunity conferred by the Eleventh Amendment extends to the state and its instrumentalities); Steadfast Ins. Co. v. Agricultural Ins. Co., 507 F.3d 1250, 1256 (10th Cir. 2007) (recognizing that agency of the state is entitled to Eleventh Amendment immunity). Congress did not abrogate Eleventh Amendment immunity through § 1983, see Quern v. Jordan, 440 U.S. 332, 345 (1979), nor have the state agencies expressly waived their sovereign immunity. See Griess v. Colorado, 841 F.2d 1042, 1044-45 (10th Cir.1988). The Eleventh Amendment prohibits suit against a state entity, regardless of the relief sought. See Higganbotham v. Okla. Transp. Com'n, 328 F.3d 638, 644 (10th Cir. 2003); see also Hunt v. Colorado Dep’t of Corrections, No. 07-1400, 271 F. App’x 778, 780-81 (10th Cir. Mar. 28, 2008) (unpublished). Accordingly, the Defendants are improper parties to this action and will be dismissed.
B. Fourteenth Amendment Due Process Clause
Even if the Court allowed Mr. Manier an opportunity to amend his Complaint to assert his § 1983 claim(s) against a state official in his official capacity for prospective injunctive relief, see Ex part Young,  his allegations would not be actionable under § 1983.
To state an arguable deprivation of his Fourteenth Amendment due process rights, Plaintiff must allege facts to show that he has a constitutionally-protected liberty interest in accessing his parole file. See Boutwell v. Keating, 399 F.3d 1203, 1212 (10th Cir. 2005). A liberty interest may arise under the Constitution or state law. Id.
The Constitution does not require that an offender be released before the expiration of a valid sentence. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). Further, although a state statute may “create a liberty interest when the statute's language and structure sufficiently limits the discretion of a parole board, ” see Boutwell, 399 F.3d at 1213, Colorado prisoners generally are subject to a discretionary parole system unless they were convicted of offenses committed between July 1, 1979 and June 30, 1985. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo.1990). Even ...