United States District Court, D. Colorado
RECOMMENDATION REGARDING DISMISSAL
Gordon
P. Gallagher, United States Magistrate Judge
This
matter comes before the Court on the Prisoner Complaint (ECF
No. 1) filed pro se by Plaintiff Jimmie Graham. The
matter has been referred to this Magistrate Judge for
recommendation. (ECF No. 6).[1]
The
Court must construe the Prisoner 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). However,
the Court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
The
Court has reviewed the filings to date. The Court has
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. This Magistrate Judge
respectfully recommends that the Prisoner Complaint be
dismissed for the reasons set forth below.
I.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff
is in the custody of the Colorado Department of Corrections
in Sterling, Colorado. On April 5, 2019, he submitted pro
se a Prisoner Complaint (ECF No. 1) and a Prisoner's
Motion for Leave to Proceed Pursuant to 28 U.S.C. § 1915
(ECF No. 2). The Court granted him leave to proceed in
forma pauperis. (ECF No. 4).
Plaintiff
alleges as follows in the Prisoner Complaint. On June 7,
2018, while serving parole on a charge of Escape, Plaintiff
was convicted of a “technical parole violation.”
His parole was subsequently revoked for the remainder of his
five-year parole period by Defendant Tom Waters, the Parole
Board administrative hearing officer who conducted the
revocation hearing. Plaintiff appealed the conviction and
parole revocation, arguing that the revocation “for the
remainder” of his parole term was in direct
contravention of the statute governing the class and type of
felony conviction for which he was originally sentenced.
Plaintiff's appeal was denied by Parole Board members
Defendant Denise Balazic and Defendant Alexandra Walker. (ECF
No. 1 at 4, 7).
Plaintiff
asserts two claims for relief under 42 U.S.C. § 1983. In
Claim One, he contends that his rights under the Equal
Protection Clause of the Fourteenth Amendment were violated
when Defendants “willfully and wantonly ignored the law
and allowed to stand the revocation ‘to the remainder
of the sentence' for the technical violation.”
(Id. at 4). In Claim Two, he contends that
Defendants violated his Fourteenth Amendment due process
rights by ignoring the applicable law and “overstepping
their discretionary boundaries” in incarcerating
Plaintiff “beyond what was designated appropriate by
the law making body of this state.” (Id. at
7-8). Plaintiff seeks monetary damages and “an
injunction from this court ordering his immediate release
back onto parole, until he is discharged from his
sentence.” (Id. at 6).
II.
DISCUSSION
Plaintiff
has been granted leave to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915. Therefore, the Court must
dismiss the action if the claims in the amended Prisoner
Complaint are frivolous or seek damages from a defendant who
is immune from such relief. See 28 U.S.C. §
1915(e)(2)(B)(i) & (iii). 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).
Plaintiff's
request for an injunction ordering his release from custody
and return to parole is not an appropriate request for relief
in this § 1983 action. Plaintiff's sole federal
remedy with respect to such a claim is a writ of habeas
corpus. See Preiser v. Rodriguez, 411 U.S. 475, 504
(1973) (holding that “when a state prisoner is
challenging the very fact or duration of his physical
imprisonment, and the relief he seeks is a determination that
he is entitled to immediate release or a speedier release
from that imprisonment, his sole federal remedy is a writ of
habeas corpus”); see also United States v.
Furman, 112 F.3d 435, 438 (10th Cir.1997) (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"). If Plaintiff
wishes to pursue any habeas corpus claims in this Court after
exhausting state remedies, he must file an application for
writ of habeas corpus on the proper form and he must name a
proper Respondent.
Plaintiff's
damages claims properly are dismissed because they are barred
by the rule in Heck v. Humphrey, 512 U.S. 477
(1994). Pursuant to Heck, a claim brought under 42
U.S.C. § 1983 is barred if “a judgment in favor of
the plaintiff would necessarily imply the invalidity of [the
plaintiff's] conviction or sentence, ” unless 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 the
issuance of a federal habeas writ. Heck, 512 U.S. at
486-87. In short, a civil rights action filed by a state
prisoner “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.”
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). The
rule in Heck applies to parole revocations. Crow
v. Penry, 102 F.3d 1086, 1087 (10th Cir.1996)
(“[Heck] applies to proceedings that call into
question the fact or duration of parole or probation”).
Because upholding Plaintiff's claims would call into
question the fact or duration of his current imprisonment,
and Plaintiff does not allege that the parole determination
has been reversed on direct appeal, expunged by executive
order, declared invalid by an authorized state tribunal, or
called into question by the issuance of a federal habeas
writ, Plaintiff's claims are barred by Heck.
See id.
Additionally,
parole board members enjoy absolute immunity from damages
liability for actions taken in the performance of the
board's official duties regarding the granting or denying
of parole. Russ v. Uppah, 972 F.2d 300, 303 (10th
Cir. 1992). Plaintiff's claims against Defendants, all of
whom are identified as Parole Board members, clearly fall
into this category. Therefore, Defendants are personally
immune from Plaintiff's damages claims.
Plaintiff
also may not sue Defendants in their official capacities for
damages. The official capacity claims against Defendants
properly are construed as claims against the State of
Colorado. See Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 690 n.55 (1978) (official capacity suits
“generally represent only another way of pleading an
action against an entity of which an officer is an
agent”). However, the State of Colorado is protected by
Eleventh Amendment immunity. See Will v. Michigan
Dep't of State Police, 491 U.S. 58, 66 (1989);
see also Duncan v. Gunter, 15 F.3d 989, 991 (10th
Cir. 1994) (“Neither states nor state officers sued in
their ...