Cassell v. Carlson

          RECOMMENDATION REGARDING DISMISSAL

          Gordon P. Gallagher, United States Magistrate Judge

         This matter comes before the Court on the Prisoner Complaint (ECF No. 1).^[1]Plaintiff proceeds pro se. The matter has been referred to this Magistrate Judge for recommendation (ECF No. 11).^[2] 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 Complaint be dismissed with prejudice.

         I. Procedural Background

         Plaintiff, Keith E. Cassell, is in the custody of the Colorado Department of Corrections (CDOC). At the time he initiated this action on February 11, 2019, Plaintiff was incarcerated at the Trinidad Correctional Facility in Model, Colorado. Mr. Cassell has filed pro se a Prisoner Complaint, asserting a deprivation of his constitutional rights pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983. (ECF No. 1). He has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. (ECF No. 4).

         On February 19, 2019, the Court ordered Mr. Cassell to file an Amended Prisoner Complaint within 30 days because his original pleading failed to state an arguable claim for relief against the Defendant. (ECF No. 5). In a March 1, 2019 minute order, Mr. Cassell was granted a 30-day extension of time to comply with the February 19 Order. (ECF No. 7). His Amended Prisoner Complaint was due on or before April 19, 2019. (Id.). On March 13, 2019, the copy of the March 1 minute order sent to Plaintiff was returned to the Court as undeliverable. (ECF No. 8). A notation on the returned envelope indicated that Mr. Cassell was “no longer in custody.” (Id.).

         Mr. Cassell has now failed to file an Amended Prisoner Complaint as directed in the February 19 Order and March 1 minute order. Furthermore, he has not filed a notice of address change as required by the Local Rules of this Court. Therefore, the Court reviews the sufficiency of the Prisoner Complaint filed on February 11.

         II. Legal Standards

         The Court construes the Prisoner Complaint liberally because Mr. Cassell is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court will not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.

         Mr. Cassell has been granted leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. Therefore, the Court must dismiss any claims in the Complaint that are frivolous See 28 U.S.C. § 1915(e)(2)(B)(i). 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).

         III. Prisoner Complaint

         Mr. Cassell alleges that Defendant Carlson, the CDOC Manager of Offender Time/Release Operations, calculated his sentence incorrectly, thereby depriving him of a constitutionally-protected liberty interest in applying for parole or community corrections at an earlier date. (ECF No. 1 at 6). Plaintiff states that after he filed two habeas corpus actions in the state district court challenging Ms. Carlson's improper time computations, the CDOC admitted that he had served more than two years past his parole eligibility date (PED). (Id. at 6-7 and n.6). Specifically, in response to an order to show cause issued by the state district court, the Executive Director of the CDOC stated: “[T]he CDOC has recalculated Mr. Cassell's PED in accordance with applicable statutes and controlling case law, . . . . His recalculated PED is no[w] March 10, 2017, which has now past.” (Id. at n. 6). On January 29, 2019, the Colorado Parole Board granted Mr. Cassell's application for parole. (Id. at 7). Plaintiff was scheduled to be paroled on February 26, 2019. (Id.).

         Mr. Cassell asserts that Defendant Carlson violated his Fourteenth Amendment due process rights and sues the Defendant, in her individual capacity, for monetary relief.

         IV. Analysis A. Applicability of Heck v. Humphrey

         As an initial matter, the Court observes that Plaintiff's claim for damages based on the alleged miscalculation of his parole eligibility date does not appear to ...