United States District Court, D. Colorado
KEITH E. CASSELL, Plaintiff,
MARY CARLSON, Manager of Offender Time/Release Operations of the CDOC, in Her Individual Capacity, Defendant.
RECOMMENDATION REGARDING DISMISSAL
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the Prisoner Complaint (ECF
No. 1).Plaintiff proceeds pro se. The
matter has been referred to this Magistrate Judge for
recommendation (ECF No. 11). 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.
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).
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.).
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.
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.
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
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.
Cassell asserts that Defendant Carlson violated his
Fourteenth Amendment due process rights and sues the
Defendant, in her individual capacity, for monetary relief.
Analysis A. Applicability of Heck v.
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 ...