Kailey v. Ritter , 500 F. App'x 766 ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
October 24, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
RANDY KAILEY,
Plaintiff-Appellant,
v. No. 11-1372
(No. 1:11-CV-00143-LTB)
BILL RITTER; ARISTEDES
ZAVARAS; KEITH NORDELL; (D. Colo.)
MARY CARLSON; ANTHONY
DECESARO; CARL GILGE; BURL
MCCULLAR; RYAN LONG; JOHN
LEONARD; CONNIE STEVENS;
JOHN BIHARRY; JAMES DAY;
JOHN GAYLORD; ROBERT
KAHANIC; ALVIN SAIS; BETH
STEPHENSON; WILLIAM
FLEMING; DEBRA PACHECO; W.
GERALD SCRUGGS; RICK
LALONDE; ROBERT WRIGHT;
RICHARD MANNING; JAMES
LUECK; RAYMOND GONZALES;
CRUZ CABALLERO; CAROL
MORTON; MIKE LEEWAYE; KEITH
VALERIO; DONALD STURGEON;
GLYNETTE SMITH; ED VIGIL, in
their individual and official capacities,
Defendants-Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Before KELLY, HARTZ, and HOLMES, Circuit Judges.
Plaintiff-Appellant Randy Kailey, a Colorado state prisoner proceeding pro
se, 1 appeals from the district court’s dismissal of his complaint alleging various
civil rights violations under 42 U.S.C. § 1983. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
I
Mr. Kailey is an inmate in a Colorado state prison. He filed a complaint in
the U.S. District Court for the District of Colorado, alleging that he was not
awarded the earned time credits (“credits”) he should have received. Specifically,
Mr. Kailey’s complaint alleges: 2 (1) that he participated in recommended one-on-
one sex-offender counseling sessions and other treatment, but was denied certain
credits that other state prisoners participating in the same program received for
their participation, see R. at 189 (Second Am. Compl, filed May 10, 2011); (2)
Procedure 32.1 and Tenth Circuit Rule 32.1.
1
We construe Mr. Kailey’s pro se filings liberally. See Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Van Deelen v. Johnson, 497 F.3d
1151, 1153 n.1 (10th Cir. 2007).
2
Mr. Kailey filed a second amended complaint and it was the subject
of the district court’s order of dismissal. In discussing Mr. Kailey’s “complaint,”
we are referring to his second amended complaint.
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that after being transferred to a prison that did not provide certain treatment
options, he placed himself on a “waiting list” but was denied the corresponding
credits, to which he avers statutory entitlement, and that other prisoners on the list
did receive, see id. at 189–90; and (3) that after complaining to prison officials
about not being awarded credits, and receiving a promise that certain credits
would be “restored,” the credits were not restored, see id. at 192. Mr. Kailey
alleges that he has earned “more than . . . 1,154 days” of credit that has
unlawfully been denied. See id. at 193.
Mr. Kailey named thirty-five defendants, principally prison officials, in
both their official and individual capacities. His complaint includes six specific
claims, in which he avers violations of his First, Fifth and Fourteenth Amendment
rights. He sought both equitable relief, i.e., declaratory and injunctive relief, and
damages.
The district court determined that “[f]or the most part, Mr. Kailey’s
supporting facts took place more than two years before he submitted the instant
action for filing, and his claims now are barred by the statute of limitations.” Id.
at 229 (Order of Dismissal, filed June 23, 2011). The court noted, however, that
even if it “were to consider Mr. Kailey’s claims on the merits, the claims would
be dismissed as legally frivolous.” Id.
In that regard, the court reasoned that because Mr. Kailey was convicted of
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a sex offense, and he is subject to discretionary (not mandatory) parole, he “does
not have a liberty interest in receiving direct credit against his sentence.” Id. at
232. The court stated that “earned time credits are not protected independently by
the Constitution,” id. at 233 (citing Wolff v. McDonnell, 418 U.S. 539, 557
(1974)), and that “Mr. Kailey fails to demonstrate the existence of any
constitutionally protected liberty interest that arises under state law because the
award of earned time credits in Colorado is discretionary with prison authorities,”
id. (citing Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006)). 3
With respect to Mr. Kailey’s putative discrimination claims—i.e., that
unlike him, other inmates continue to receive credits even though they had been
convicted of a disciplinary infraction; and that his placement in a prison facility
that lacks certain programs that would qualify him for credits is, itself, disparate
3
In a previous case also filed in the U.S. District Court for the District
of Colorado, Mr. Kailey lodged a facial constitutional challenge to the Colorado
parole scheme, as construed by the Colorado Attorney General. See Rather v.
Romer, 930 F.2d 34, No. 90-1260, 1991 WL 50541 (10th Cir. Apr. 8, 1991)
(unpublished table decision). A panel of this court upheld the district court’s
dismissal of Mr. Kailey’s claims. See id. at *1. The panel rejected his due-
process challenge on the ground that he had not established a constitutionally
protected liberty interest in parole. See id. at *2. The panel concluded that the
U.S. Constitution did not provide him a liberty interest in mandatory parole. See
id. Furthermore, because the Colorado Supreme Court had construed the parole
regime relating to sex offenders as providing for discretionary parole—a reading
that we accord deference—the panel determined that Colorado law did not create
a constitutionally protected liberty interest in parole. See id. The panel stated
that, to the extent that the relief sought would involve securing speedier release
from prison, “the action . . . is in reality one for habeas corpus relief.” Id. at *1
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treatment—the district court held that Mr. Kailey’s “allegations do not make a
rational argument on the law and facts supporting an equal protection claim.” Id.
at 235. The court reasoned that “Mr. Kailey fails to assert how he was treated
differently from other similarly situated inmates in the denial of earned time
credits or for his placement in a prison facility where [certain programs are] not
available.” Id. at 235–36 (citing Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th
Cir. 1996) (per curiam)).
Mr. Kailey filed a Motion for Reconsideration. The district court denied
that motion, noting that “[a] motion for reconsideration is appropriate where a
court has misapprehended the facts, a party’s position, or the controlling law,”
and that “Mr. Kailey does not argue an intervening change in controlling law or
the availability of new evidence . . . [and] fails to demonstrate the need to correct
clear error or prevent manifest injustice.” Id. at 252 (Order Denying Mot. for
Reconsideration, filed July 20, 2011). Mr. Kailey timely filed a notice of appeal.
II
For several reasons, we conclude that Mr. Kailey’s claims must fail. We
address each of these reasons in turn.
A
In his complaint, Mr. Kailey seeks certain forms of declaratory and
injunctive (i.e., equitable) relief. He requests a declaratory judgment stating that
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certain defendants “willfully failed to enter [his] meritorious sentence reduction
credits . . . as was . . . specifically required by state law . . . in violation of his
Constitutionally protected Fifth and Fourteenth Amendment liberty interest.” Id.
at 223. He also seeks a declaratory judgment that other defendants “wantonly
refused to enter [his] meritorious sentence reduction credits into the [state
computer system] as was . . . required by . . . law.” Id. Mr. Kailey also seeks
injunctive relief, including, among other things, orders directing certain
defendants to “award [Mr. Kailey] [a total of 1,270] meritorious sentence
reduction credits to be deducted from the criminal sentence.” Id. at 225–26.
Because a judgment in Mr. Kailey’s favor would necessarily imply the
invalidity of his sentence, his complaint under § 1983 must be dismissed unless
Mr. Kailey can show that the sentence has already been invalidated, for example,
as the result of a habeas proceeding. See Heck v. Humphrey, 512 U.S. 477,
486–87 (1994); see also Edwards v. Balisok, 520 U.S. 641, 646 (1997); Janke v.
Price, 124 F.3d 216, No. 96-1493, 1997 WL 537962, at *4 (10th Cir. Sept. 2,
1997) (unpublished table decision) (“[Plaintiff’s] claims that seek restoration of
his good time credits are not cognizable under § 1983 until he has established that
the conviction or sentence has been declared invalid.”). In other words, Mr.
Kailey’s claims should have been brought in a petition for a writ of habeas
corpus, and not in a civil rights action. See Preiser v. Rodriguez, 411 U.S. 475,
500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of
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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.” (emphases added)); see also
Smith v. Maschner, 899 F.2d 940, 951 (10th Cir. 1990) (“Insofar as [the
appellant] seeks restoration of his good time credits, his complaint runs afoul of
the Supreme Court’s holding in Preiser v. Rodriguez.” (citation omitted)); Rather,
1991 WL 50541, at *1; accord Urrutia v. Harrisburg Cnty. Police Dep’t, 91 F.3d
451, 462 (3d Cir. 1996) (holding that where plaintiff sought relief from custody,
his complaint sounded in habeas corpus, not civil rights). Whether or not Mr.
Kailey is entitled to such equitable relief, we are not in a position to grant it. 4
It is true that “[t]he district court could liberally construe [a pro se
petitioner’s civil rights] complaint as a section 2254 petition.” Smith, 899 F.2d at
4
We note that, in his prayer for relief, Mr. Kailey also purports to
request injunctive relief more broadly. Specifically, Mr. Kailey seeks to enjoin
the defendants from “withholding meritorious sentence reduction credits from
state prisoners based solely upon conviction for disciplinary infractions until such
time as state law . . . [is] amended to recognize the loss of meritorious sentence
reduction credits as an authorized sanction, or penalty, for conviction of
disciplinary infractions.” Id. at 226. In order to grant this form of relief,
however, we would need to conclude as an antecedent matter that Colorado law
currently does not authorize the withholding of prisoners’ credits as a sanction or
penalty for disciplinary infractions. And Mr. Kailey’s averments leave no doubt
that such a conclusion will necessarily entitle him to an award of credits. See id.
at 210–11 (discussing the number of credits that he was improperly denied
because of unlawful application of Colorado law to deny credits based upon his
disciplinary violations). Accordingly, this is not the type of “prospective relief
[that] will not ‘necessarily imply’ the invalidity of a previous loss of good-time
credits, and so may properly be brought under § 1983.” Balisok, 520 U.S. at 648.
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951. But, even if we were to construe Mr. Kailey’s complaint as a habeas
petition, it would be defective. To obtain habeas relief Mr. Kailey would be
required to name the warden of the correctional facility in which he is confined.
See Depineda v. Hemphill, 25 F.3d 1056, No. 94-1094, 1994 WL 247025, at *3
(10th Cir. June 9, 1994) (per curiam) (unpublished table decision). The warden is
a necessary party to a § 2254 action. See id.; see also Rule 2(a) of the Rules
Governing Section 2254 Cases in the United States District Courts (“If the
petitioner is currently in custody under a state-court judgment, the petition must
name as respondent the state officer who has custody.”); Bridges v. Chambers,
425 F.3d 1048, 1049 (7th Cir. 2005) (“A federal habeas corpus action brought by
a state prisoner must name as the respondent the state officer who has custody of
the petitioner.” (citation omitted) (internal quotation marks omitted)); Smith v.
Idaho, 392 F.3d 350, 354–55 (9th Cir. 2004) (holding that the district court lacks
personal jurisdiction over a habeas petition when the state official having custody
is not named as respondent). Mr. Kailey, however, did not name the warden as a
respondent. Accordingly, Mr. Kailey’s § 1983 action—even if it were construed
as a habeas petition—would fail.
B
To the extent Mr. Kailey’s complaint seeks damages under § 1983, see R.
at 227, his claims also must fail. In addition to the equitable relief sought, Mr.
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Kailey seeks awards of “[c]ompensatory damages” resulting from “false
imprisonment,” for “severe mental anguish and other extreme emotional distress,”
and for “unwanted pain and suffering.” Id. He also seeks punitive damages, as
well as costs, and “[a]ny additional relief the Court or jury may deem appropriate,
proper, and otherwise just.” Id.
Under 42 U.S.C. § 1983, Mr. Kailey sued numerous state officials in their
official capacity for damages. This avenue is not viable for Mr. Kailey. Neither
the State, nor state officials who are sued in their official capacities, can be
proceeded against under § 1983 because they are not “persons” within the
meaning of the statute (and therefore, the Eleventh Amendment bars such suit in
federal court). Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994) (“Neither
states nor state officers sued in their official capacity are ‘persons’ subject to suit
under section 1983.”) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58,
70–71 (1989)); see Hunt v. Bennett, 17 F.3d 1263, 1267 (10th Cir. 1994) (“[T]he
Eleventh Amendment precludes a federal court from assessing damages against
state officials sued in their official capacities because such suits are in essence
suits against the state.”); see also Whitney v. New Mexico, 113 F.3d 1170, 1173
(10th Cir. 1997); Thompson v. Hadwiger, 21 F.3d 1122, No. 93-7096, 1994 WL
131753, at *1 n.2 (10th Cir. Apr. 15, 1994) (per curiam) (unpublished table
decision).
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In his § 1983 claims, Mr. Kailey also sued the defendants in their
individual capacities. However, upon review of the pertinent legal authorities and
the record as a whole—and for substantially the same reasons stated by the
district court—we conclude that Mr. Kailey’s claims for damages against the
defendants in their individual capacities are substantively without merit.
III
For the reasons set forth above, we AFFIRM the district court’s order
dismissing Mr. Kailey’s complaint and its resulting judgment. Mr. Kailey’s
pending motion to proceed in forma pauperis on appeal is GRANTED. Mr.
Kailey is reminded of his obligation to continue making partial payments until his
entire filing fee has been paid in full.
Entered for the Court
JEROME A. HOLMES
Circuit Judge
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