Allen v. Warden Falk , 624 F. App'x 980 ( 2015 )


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  •                                                                                   FILED
    United States Court of Appeals
    UNITED STATES COURT OF APPEALS                          Tenth Circuit
    FOR THE TENTH CIRCUIT                           August 31, 2015
    _________________________________
    Elisabeth A. Shumaker
    Clerk of Court
    EDWARD ALLEN,
    Plaintiff - Appellant,
    v.                                                          No. 15-1071
    (D.C. No. 1:14-CV-01176-RBJ-MJW)
    WARDEN FALK, Sterling Correctional                           (D. Colo.)
    Facility,
    Defendant - Appellee.
    _________________________________
    ORDER AND JUDGMENT*
    _________________________________
    Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
    _________________________________
    Plaintiff Edward Allen Clutts1 is a current inmate of the Colorado Department
    of Corrections (“CDOC”). Allen filed a civil lawsuit in which he named as
    defendants individual parole board members, the Colorado Sex Offender
    Management Board (“SOMB”), and James Falk, the former Warden of the Sterling
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral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
    Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
    1
    Throughout this litigation, the plaintiff has been referred to alternatively as
    Edward Clutts, Edward Allen, and Edward Allen Clutts. For the purposes of this
    order, we will refer to him hereinafter as Allen.
    Correctional Facility (“Sterling”), alleging three constitutional violations. The district
    court dismissed Allen’s claims in their entirety but—on motion for rehearing—
    reinstated the Eighth Amendment claim against Warden Falk. This claim alleged
    that—to punish Allen for refusing to participate in sex-offender treatment—Warden
    Falk subjected Allen to beatings by fellow prisoners and housed him with gang
    members.
    The district court referred Allen’s reinstated Eighth Amendment claim against
    Warden Falk to a magistrate judge, who determined that all but one of the supporting
    incidents Allen relied upon were barred by the statute of limitations. The magistrate
    also determined that Allen’s claim regarding the sole incident not barred by the
    statute of limitations was unexhausted. Despite these determinations, however, the
    magistrate judge still proceeded to address Allen’s entire Eighth Amendment claim
    (comprising all of the complained of incidents) on the merits and concluded that—
    even without the statute of limitations and exhaustion issues—Allen had failed to
    show a claim for deliberate indifference to an objectively serious risk to his safety.
    Since Warden Falk was no longer working at Sterling, the magistrate also determined
    that he could not be subjected to the injunction requested by Allen. The district court
    adopted this recommendation and dismissed Allen’s sole surviving claim. Allen now
    appeals and also seeks to re-raise claims and proceed against parties previously
    dismissed. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
    2
    BACKGROUND
    A. Factual Background
    In July 2004 Allen was sentenced to three concurrent terms of ten years to life
    imprisonment for sexually assaulting a child while in a position of trust. At
    sentencing, the state court concluded that it lacked authority to order Allen to
    undergo sex-offender treatment. Once incarcerated, sometime about August 15, 2004,
    Allen alleges that his case manager told him that he was recommending that Allen
    enter the sex-offender treatment program, and that if Allen did not cooperate he
    would be moved to a place where “things can be done.” In 2005 a representative at
    the sex-offender program sent Allen a form requiring him to confess to the sex crime
    for which he had been convicted. Allen refused to sign and was deemed non-
    compliant with sex-offender treatment.
    Allen contends that over the ten years since this incident he has been
    repeatedly placed with security-threat-group (“STG”) prisoners who have threatened,
    beaten, and attempted to kill him. By the time Allen arrived at Sterling on July 31,
    2009, he had already filed a civil case about the violence he had experienced at
    previous facilities. As part of this previous case, Allen had told a magistrate judge at
    a hearing that he continued to live under threat of violence at Sterling. After this
    hearing, Warden Falk moved Allen to a new living unit.
    In his new living unit, Allen contends the violence continued. First, he alleges
    that his cellmate told him that other inmates would beat the cellmate if he stayed in a
    cell with Allen without fighting him. The prison moved that inmate to another cell,
    3
    and Allen was assigned a new cellmate named Zamora—who Allen says had gang
    affiliations. Although Allen repeatedly complained about Zamora, he says that guards
    refused to move either him or Zamora, which allowed Zamora to physically assault
    him in their cell. Allen also alleges two additional incidents of violence: (1) on
    August 12, 2011, inmate Edward Douglas snuck up behind Allen with a lock in a
    sock and beat Allen; and (2) on April 25, 2012, an inmate Allen identifies as having
    the last name Windschel attacked Allen in the “gang pod” where Allen was being
    held.
    Allen asserts that in his time at Sterling he suffered scars on his face, a broken
    rib, and a lost tooth. Despite this, however, Allen states that the Colorado Attorney
    General’s Office refused to do anything about the continued threats of violence.
    Allen also contends that Warden Falk purposefully housed Allen with STG prisoners,
    and that it is common knowledge that STG prisoners beat, attack, and kill sex
    offenders.
    B. Procedural Background
    Allen initiated his present action by filing a pro se complaint seeking relief
    under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. After a magistrate judge determined
    that Allen’s complaint was deficient under Rule 8 of the Federal Rules of Civil
    Procedure for failing to allege the personal participation of each named defendant in
    the deprivation of Allen’s rights, Allen filed an amended complaint. This amended
    complaint asserted three claims for relief: (1) that Allen had twice been denied parole
    by the Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth
    4
    Amendment rights because the Colorado Sex Offender Management Board
    (“SOMB”) had deemed him non-compliant with the CDOC’s sex-offender treatment
    program for refusing to admit guilt to a sex offense; (2) that unidentified prison
    officials had retaliated against him in violation of the Constitution by denying him a
    higher paying job because of his refusal to admit a sex offense; and (3) that Warden
    Falk had acted with deliberate indifference to Allen’s safety by intentionally placing
    him in a living unit with STG inmates who assaulted him because he is a sex
    offender.
    The district court initially dismissed all three claims, but eventually reinstated
    the third one. Relevant to us here, it dismissed Allen’s first claim for three reasons:
    (1) Allen’s request for release on parole is not cognizable in a civil rights action
    under 42 U.S.C. § 1983, but must instead be raised in an application for habeas
    corpus under 28 U.S.C. § 2241; (2) Allen could not seek damages in a § 1983 action
    based on the denial of his parole because a ruling in his favor would necessarily
    imply the invalidity of the Parole Board’s decision in contravention of Heck v.
    Humphrey, 
    512 U.S. 477
    (1994); and (3) Allen’s claim could not proceed against
    SOMB because, as an entity of the State of Colorado, SOMB is entitled to Eleventh
    Amendment immunity absent a waiver.
    Allen does not appear to renew his second claim before us, and the district
    court’s analysis of the third claim is irrelevant because the court ultimately reinstated
    this claim on a motion for reconsideration. After this motion, a magistrate judge
    heard Warden Falk’s dispositive motions against Allen’s third claim. The magistrate
    5
    judge recommended that Allen’s claim against Warden Falk be dismissed for four
    reasons: (1) the statute of limitations barred all claims except the incident on April
    25, 2012; (2) for the incident on April 25, 2012, Allen had failed to exhaust his
    administrative remedies as required by the PLRA; (3) even if the PLRA and the
    statute of limitations did not bar Allen’s claim, Warden Falk had Eleventh
    Amendment immunity against official-capacity claims; and (4) Allen’s claim did not
    show an injury cognizable under the Eighth Amendment. Under de novo review, the
    district court fully adopted the magistrate’s recommendation.
    Allen now appeals the district court’s order, and also appears to appeal the
    district court’s dismissal of one of his two previous claims. We interpret Allen’s
    appellate brief as making three claims before this court:2 (1) that Allen had twice
    been denied parole by the Colorado Parole Board, in violation of his Fifth, Eighth,
    and Fourteenth Amendment rights because the SOMB had deemed him non-
    compliant with the CDOC’s sex-offender-treatment program because he refused to
    admit guilt to a sex offense; (2) that requiring Allen to admit having committed a sex
    offense as part of his sex-offender treatment violates his Fifth Amendment rights; and
    (3) that Warden Falk acted with deliberate indifference to Allen’s safety by
    intentionally placing him in a living unit with STG inmates who assaulted him
    because he is a sex offender.
    2
    Allen’s brief does not make precisely clear the exact bases for his appeal or
    exactly what he is appealing. But because he is a pro se plaintiff we liberally construe
    his pleadings. See Haines v. Kerner, 
    404 U.S. 519
    , 520–21 (1972); Hall v. Bellmon,
    
    935 F.2d 1106
    , 1110 (10th Cir. 1991).
    6
    DISCUSSION
    A. Denial of Parole
    As noted above, Allen’s first claim before the district court—which was
    dismissed previously—alleged that Allen had twice been denied parole by the
    Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth Amendment
    rights because the SOMB had deemed him non-compliant with the CDOC’s sex-
    offender-treatment program for refusing to admit guilt to a sex offense. Allen’s brief
    before this court appears to renew at least part of this claim, asking for relief in the
    form of an “[o]rder [to] the Parole-board to release the plaintiff to parole.” Before
    this court, it does not appear that Allen requests compensatory damages as he did
    before the district court.
    We believe the district court correctly dismissed this claim because it is not
    cognizable in a civil rights action under 42 U.S.C. § 1983. If Allen desires to attack
    the “fact or duration of his confinement,” he cannot do so in a § 1983 action. Preiser
    v. Rodriguez, 
    411 U.S. 475
    , 489–90 (1973). Rather, he must—in a separate
    proceeding—file an application for habeas corpus under 28 U.S.C. § 2241 and allege
    that the execution of his sentence violates federal law. See Davis v. Roberts, 
    425 F.3d 830
    , 833 (10th Cir. 2005). We affirm the district court’s dismissal of Allen’s first
    claim.
    B. Requirement to Admit a Sex Offense
    Allen’s second claim—which it appears the district court considered in
    dismissing his first claim for relief in his initial complaint—attacks the SOMB’s
    7
    requirement that he admit guilt to a sex offense as part of his completing sex-offender
    treatment. The district court dismissed this claim because it found that, as an entity of
    the state, SOMB has Eleventh Amendment immunity absent a waiver. When Allen
    claimed in his motion for reconsideration that he was seeking to sue the SOMB
    members in their individual capacities, the district court additionally determined that
    the defendants had not violated Allen’s Fifth Amendment rights by requiring that he
    admit guilt to a sex offense because this requirement served a legitimate penological
    interest.
    We believe both of these rationales have merit, but we address only the second
    one because it would hold true regardless of whether Allen’s claim was against
    SOMB officials in their individual or official capacities. We agree that Allen cannot
    allege a violation of his Fifth Amendment rights on these facts. First, we note that the
    Supreme Court has held that “when a prison regulation impinges on inmates’
    constitutional rights, the regulation is valid if it is reasonably related to legitimate
    penological interests.” Turner v. Safley, 
    482 U.S. 78
    , 89 (1987). And, second, in Doe
    v. Heil, 533 F. App’x 831 (10th Cir. 2013) (unpublished), a case challenging
    Colorado’s prison regulations that required full disclosure of sexual history as part of
    a sex-offender-treatment program, we concluded that Colorado furthered its
    legitimate penological interest in rehabilitating sex offenders “by requiring them,
    without regard to their Fifth Amendment stake in avoiding self-incrimination, to
    submit to a polygraph and admit their full sexual history.” 
    Id. at 839–840.
    Allen
    provides us with no basis to vary from this holding.
    8
    C. Eighth Amendment Claim Against Warden Falk
    Allen’s final claim is that Warden Falk acted with deliberate indifference to
    Allen’s safety by intentionally placing him in a living unit with STG inmates who
    assaulted him because he is a sex offender. Before we can reach any of the arguments
    Allen makes on the merits regarding this claim, however, we have an independent
    duty to confront the issue of our own jurisdiction. Amazon, Inc. v. Dirt Camp, Inc.,
    
    273 F.3d 1271
    , 1274 (10th Cir. 2001). Here, we perceive two jurisdictional questions
    based on the parties’ briefs and the judgments below: (1) whether Allen timely filed a
    Notice of Appeal and (2) whether Allen administratively exhausted his claim under
    the PLRA. We will consider each of these arguments in turn.3
    One prerequisite to our appellate jurisdiction is the timely filing of a Notice of
    Appeal. United States v. Cebbalos-Martinez, 
    387 F.3d 1140
    , 1143 (10th Cir. 2004).
    Here, Allen needed to deposit his Notice of Appeal in the prison mail system within
    thirty days after the entry of judgment. See Fed. R. App. P. 4. Warden Falk
    challenges Allen’s timeliness, pointing out that the district court issued its Order and
    Judgment on January 12, 2015. He claims this means that Allen needed to deposit his
    Notice of Appeal in the prison mail system by February 11, 2015. Allen’s Notice of
    Appeal is dated February 24, 2015 and was filed on March 2, 2015.
    3
    Our decision to address these specific jurisdictional issues should not be read
    to suggest that the other threshold concerns raised by Warden Falk do not have merit.
    Given our “leeway ‘to choose among threshold grounds for denying audience to a
    case on the merits,’” we simply choose to consider only these particular jurisdictional
    questions, which are sufficient to fully dispose of this claim. Sinochem Intern. Co. v.
    Malaysia Intern. Shipping Corp., 
    549 U.S. 422
    , 431 (2007) (quoting Ruhrgas AG v.
    Marathon Oil Co., 
    526 U.S. 574
    , 585 (1999)).
    9
    We conclude that Allen filed a timely Notice of Appeal. As Warden Falk
    notes, the district court entered judgment on January 12, 2015. But Warden Falk fails
    to acknowledge that Allen filed a motion for rehearing on February 2, 2015. Under
    Fed. R. App. P. 4(a)(4)(iv), the thirty-day clock for Allen to file his Notice of Appeal
    did not begin to run until the court ruled on Allen’s motion. The court ruled on
    Allen’s motion for rehearing on February 4. Allen’s Notice of Appeal was dated
    February 24 and filed on March 2, well within this thirty-day limit.
    But on the second jurisdictional issue, Allen does not fare so well. The PLRA
    provides that “[n]o action shall be brought with respect to prison conditions under
    section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
    prison, or other correctional facility until such administrative remedies as are
    available are exhausted.” 42 U.S.C. § 1997e(a) (2012). The PLRA requires dismissal
    where a litigant has failed to exhaust before suing. See Fitzgerald v. Corrections
    Corp. of Am., 
    403 F.3d 1134
    , 1140–41 (10th Cir. 2005). In its regulations, the CDOC
    has a multi-step grievance process that includes a written informal grievance
    followed by a formal three-step written grievance procedure, see Colorado
    Department Of Corrections, Administrative Regulation 850-4 (2015) (hereinafter
    “AR 850-4”), and we require that an inmate must appeal through all available
    channels to exhaust administrative remedies. See Jernigan v. Stuchell, 
    304 F.3d 1030
    ,
    1032 (10th Cir. 2002). There is, however, an exception to the exhaustion requirement
    when an inmate is prohibited from filing a grievance. See 
    id. On two
    grounds, Allen
    claims that he has satisfied his exhaustion requirements.
    10
    First, before both the district court and this court, Allen asserts that he did in
    fact file grievances. But as the magistrate noted, Allen appears to rely on grievances
    filed years before the incidents he now complains about. These stale grievances
    cannot serve to exhaust his remedies for later incidents.
    Second, Allen claims that he attempted to file grievances but was kept from
    doing so. Again, however, the magistrate correctly notes a fatal flaw in this
    argument: Colorado’s administrative regulation requires that inmates must file their
    first grievance “within 30 days of the discovery of the issue or complaint. . . .” AR
    850-4. This means that, at latest, Allen needed to file a grievance for the last of his
    identified incidents by May 25, 2012. Based on our reading of the record, the only
    time Allen claims he attempted to file a grievance and was denied this right was on
    March 19, 2014, nearly two years after he needed to do so.
    For these reasons, we agree that Allen has not exhausted his administrative
    remedies regarding his Eighth Amendment Claim against Warden Falk. We therefore
    lack jurisdiction under the PLRA to consider this claim.4
    Leave to Proceed in Forma Pauperis
    Allen also petitions this court to grant him pauper status. Under 28 U.S.C.
    § 1915, any court of the United States may grant pauper status to “allow indigent
    persons to prosecute, defend or appeal suits without prepayment of costs.” Coppedge
    4
    Although concluding it lacked jurisdiction under the PLRA, the magistrate
    court still considered the merits of Allen’s Eighth Amendment claim to explain why
    the claim should be dismissed if it indeed had jurisdiction. While we agree with the
    magistrate’s analysis, we decline to further consider the merits of Allen’s claim given
    our finding that we lack jurisdiction to consider the claim under the PLRA.
    11
    v. United States, 
    369 U.S. 438
    , 441 (1962). Here, under 28 U.S.C. § 1915(a)(3), the
    district court certified that any appeal would not be taken in good faith and denied
    Allen’s motion to proceed in forma pauperis on appeal. In light of that action, we
    will only grant pauper status if we conclude that the appeal contains a non-frivolous
    argument. See Rolland v. Primesource Staffing, L.L.C., 
    497 F.3d 1077
    , 1079 (10th
    Cir. 2007).
    Turning to Allen’s motion, we believe that this appeal is not taken in good
    faith and that Allen has failed to show the existence of a reasoned, nonfrivolous
    argument on the law and facts in support of the issues raised on appeal. We remind
    Allen that he must pay the filing and docket fees in full to the clerk of the district
    court.
    Entered for the Court
    Gregory A. Phillips
    Circuit Judge
    12