United States District Court, D. Colorado
MARCUS F. CORDOVA, Plaintiff,
WATT PESTERFIELD, Division of Adult Parole (C.D.O.C.), and ADAMS COUNTY DETENTION FACILITY CENTER, Defendants.
ORDER OF DISMISSAL
LEWIS T. BABCOCK, Senior District Judge.
Plaintiff, Marcus F. Cordova, is detained in the Denver County Jail. He initiated this action on January 20, 2015, by filing a Motion to Hear Habeas Corpus Motion and a Prisoner's Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 in a Habeas Corpus Action. In the Habeas Corpus Motion, Mr. Cordova challenged the revocation of his parole and his reincarceration.
In a January 22, 2015 Order (ECF No. 4), Magistrate Judge Gordon P. Gallagher reviewed Mr. Cordova's filing and determined that it was deficient because if he was attempting to challenge the execution of his state court sentence, his claim(s) must be asserted in the court-approved form for filing an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. See Montez v. McKinna, 208 F.3d 862, 865 (10th Cir. 2000); see also United States v. Furman, 112 F.3d 435, 438 (10th Cir.1997) (noting that issues concerning "parole procedure go to the execution of sentence and, thus, should be brought against defendant's custodian under 28 U.S.C. § 2241"). Magistrate Judge Gallagher ordered Mr. Cordova to file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 on the court-approved form, within 30 days. (Id. ). Plaintiff was instructed that he could obtain the form (with the assistance of his case manager or the facility's legal assistant), along with the applicable instructions, at www.cod.uscourts.gov. (Id. ).
On February 20, 2015, Mr. Cordova filed a Prisoner Complaint pursuant to 42 U.S.C. § 1983 (ECF No. 8), along with two new § 1915 motions (ECF Nos. 5 and 6). Plaintiff asserts two claims for relief in the Prisoner Complaint: (1) the Division of Adult Parole failed to comply with due process because Plaintiff was not afforded a parole revocation hearing within thirty days (ECF No. 8, at 5); and, (2) in October 2012, while Mr. Cordova was in the custody of Defendant Adams County Detention Center, he was transported to a Colorado Department of Corrections (CDOC) facility, where he was attacked by another inmate while being detained illegally at that facility for 18 days (before he was sentenced by the state court). (ECF No. 8, at 2-3). For relief, Mr. Cordova seeks immediate release from custody. (Id. at 7).
Mr. Cordova did not file an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241, as directed in the January 22 Order. Instead, he filed a Prisoner Complaint. Because Mr. Cordova asserts a civil rights claim in the Prisoner Complaint, the Court assumes that Plaintiff intends to proceed under 42 U.S.C. § 1983 and will address the sufficiency of the Complaint.
Plaintiff has been granted leave to proceed in forma pauperis in a civil rights action, pursuant to 28 U.S.C. § 1915. ( See ECF No. 9). 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 Prisoner Complaint liberally because Mr. Cordova 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 be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons discussed below, this action will be dismissed.
I. Challenge to Procedures Used to Revoke Parole
Mr. Cordova asserts in his first claim for relief that he was not afforded a parole revocation hearing within 30 days, as required under Morrissey v. Brewer, 408 U.S. 471 (1972), and pursuant to state statute. To the extent he seeks relief under § 1983, the claim is premature.
In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court held that to recover damages for an unconstitutional conviction or imprisonment, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck applies to proceedings that call into question the validity of a parole revocation. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996).
A prisoner can bring a § 1983 claim that challenges the procedural aspects of a parole revocation without running afoul of the rule in Heck. See Spencer v. Kemna, 523 U.S. 1, 17 (1998) (if plaintiff "were to seek damages for the wrong procedures, not for reaching the wrong result, and if that procedural defect did not necessarily imply the invalidity of the revocation then Heck " does not apply); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (holding that prisoners are not barred from challenging the constitutionality of parole procedures through a § 1983 action because, if successful, the prisoners would neither necessarily receive a quicker release nor would a decision in their favor imply the invalidity of their conviction or sentence).
Mr. Cordova, however, does not challenge the validity of applicable state parole revocation procedures. To the contrary, he contends that a state statutory requirement for a parole revocation hearing to occur within 30 days was not followed in his case,  and that his due process rights were violated under Morrissey. For relief, he requests immediate release from custody. His claim, therefore, is cognizable only in a habeas corpus action, filed pursuant to 28 U.S.C. § 2241. See Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005) ("Because a prisoner's claim necessarily challenges the fact or duration of confinement when the remedy sought is the immediate or speedier release from confinement, such a claim must be brought under habeas.").
Accordingly, the Court will dismiss Mr. Cordova's first claim for relief, challenging his parole revocation on due process grounds, without prejudice. Mr. Cordova may open a new civil case with an Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241. Plaintiff is reminded that a state prisoner must exhaust available state ...