Graham v. Waters

          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 ...