Stewart v. Colorado Department of Corrections et al

Filing 5

ORDER to Dismiss in Part and to Draw Remaining Claim to A District Judge and Magistrate Judge. Mr. Stewart's § 1983 claim asserting that Colorado parole officers failed to submit necessary referral paperwork to contracting agencies for his participation in a drug and alcohol treatment is dismissed, with prejudice, for failure to state a constitutional violation. To the extent Mr. Stewart challenges the constitutionality of his current detention pending a parole revocation hearing, his claim is barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994), and is dismissed without prejudice. This case shall be drawn to a district judge and to a magistrate judge. By Magistrate Judge Craig B. Shaffer on 1/18/2012. (sah, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-03052-BNB
BRETT LeJON STEWART,
Plaintiff,
v.
MS. JEANNIE MILLER, Executive Director, Parole Division, Colorado Department of
Corrections,
Defendant.

ORDER TO DISMISS IN PART AND TO DRAW REMAINING CLAIM
TO A DISTRICT JUDGE AND MAGISTRATE JUDGE

Plaintiff, Brett LeJon Stewart, is in the custody of the Colorado Department of
Corrections and is detained currently at the El Paso County Justice Center in Colorado
Springs, Colorado. He has filed pro se a Prisoner Complaint pursuant to 42 U.S.C. §
1983 alleging that his rights under the United States Constitution have been violated by
Colorado parole officers and the Colorado Parole Board. Mr. Stewart has been granted
leave to proceed in forma pauperis and has demonstrated his inability to pay an initial
partial filing fee.
The Court must construe the Complaint liberally because Mr. Stewart 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). If the Complaint reasonably can be
read “to state a valid claim on which the plaintiff could prevail, [the Court] should do so
despite the plaintiff’s failure to cite proper legal authority, his confusion of various legal
theories, his poor syntax and sentence construction, or his unfamiliarity with pleading

requirements.” Hall, 935 F.2d at 1110. However, the Court should not be an advocate
for a pro se litigant. See id.
Mr. Stewart alleges in his Complaint that he was reparoled on February 12, 2010,
under parole conditions which included his participation in a drug and alcohol treatment
program. He was later arrested on criminal charges which were resolved on or before
July 10, 2010. Mr. Stewart asserts that he was detained in the El Paso County jail from
July 10, 2010 to September 29, 2010, with no pending criminal charges, while his parole
revocation hearing was delayed, in violation of a Colorado statute. Following a
September 29, 2010 hearing, Mr. Stewart was released from jail and reparoled on
September 30, 2010. In October 2010, Plaintiff’s parole officer and parole reintegration
specialist informed him that there were no funds available for him to receive treatment
and that he would not receive an in-patient treatment referral. Mr. Stewart claims that
his constitutional rights were violated when Colorado parole officers interfered with a
condition of his reparole by failing to submit necessary referral paperwork to a
contracting agency to allow him to participate in a drug and alcohol treatment program.
Plaintiff also asserts that he has been subjected to arbitrary treatment as a homeless
“I.S.P. [Intensive Supervision Parole] client” by his parole officer and the adult parole
office reintegration specialist, who filed criminal charges against him in December 2010,
after he was unable to comply with their unreasonable contact orders. Plaintiff alleges
that he has been detained in the El Paso County jail on the new charges since February
18, 2011. Mr. Stewart requests that the Court enter an injunction ordering the
Defendant and individual supervising parole officers to hold a hearing concerning the
implementation of his parole conditions. Plaintiff also seeks an award of damages.
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Mr. Stewart does not challenge the condition of his parole that he complete a
drug and alcohol treatment program. Instead, he complains that parole officers are
interfering with his ability to fulfill that condition. However, Mr. Stewart’s § 1983 claim is
not actionable unless he has a constitutionally-protected liberty interest in participating
in a treatment program while on parole. See Wilkinson v. Austin, 545 U.S. 209, 221
(2005). A liberty interest may arise from the Constitution or from state law. Id.; Estate
of DiMarco v. Wyo. Dep't of Corr., 473 F.3d 1334, 1339 (10th Cir. 2007). A parolee
does not have a federal constitutional right to drug and alcohol treatment while on
parole. See Purkey v. Simmons, 29 F. App’x 546, 547 (10th Cir. 2002) (unpublished).
Further, Mr. Stewart has not cited any state law entitlement to participate in a drug and
alcohol treatment program. Cf. Scott v. Teklu, 403 F. App’x. 344, 345 (10th Cir. 2010)
(unpublished) (rejecting petitioner’s contention that Colorado law creates a protected
liberty interest in being provided with housing assistance while on parole, pursuant to
COLO. REV. STAT. (“C.R.S.”) § 17–22.5–403(8)(a)). Because Plaintiff does not have a
constitutionally-protected liberty interest in participating in a drug and alcohol treatment
program while on parole, his claim that parole officers are interfering with his ability to
obtain treatment is not actionable under § 1983. The Court notes that Mr. Stewart does
not allege any enforcement action by the Colorado parole authorities based on his
failure to participate in a treatment program.
Mr. Stewart’s claim that parole officers arbitrarily filed criminal charges against
him, for which he is currently detained pending a parole revocation proceeding, is not
actionable under 42 U.S.C. § 1983 at this time. Pursuant to Heck v. Humphrey, 512
U.S. 477 (1994), if a judgment for damages favorable to a plaintiff in a § 1983 action
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necessarily would imply the invalidity of the plaintiff’s criminal conviction, sentence or
detention, the § 1983 action does not arise until 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 a federal court’s issuance of a writ of
habeas corpus, 28 U.S.C. § 2254.” 512 U.S. at 486-87; see also Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005) ("[A] state prisoner's § 1983 action is barred (absent prior
invalidation)—no matter the relief sought (damages or equitable relief), no matter the
target of the prisoner's suit . . . — if success in that action would necessarily
demonstrate the invalidity of confinement or its duration."). Heck also bars proceedings
challenging “the fact or duration of parole.” Crow v. Penry, 102 F.3d 1086, 1087 (10th
Cir. 1996). Therefore, to the extent Mr. Stewart challenges his detention pending a
parole revocation hearing based on the criminal charges filed against him in December
2010, he must first obtain relief in an application for habeas corpus pursuant to 28
U.S.C. § 2241 before bringing a civil rights action under 42 U.S.C. § 1983.
Mr. Stewart also appears to be raising a constitutional challenge based upon
purported inaction by the Colorado Parole Board that allegedly resulted in his parole
hearing being improperly delayed while he was detained in jail from July 20, 2010 to
September 2010. Pursuant to § 17-2-103(7), C.R.S. (2010), a revocation hearing shall
be held within a reasonable time, “not to exceed thirty days after the parolee was
arrested; . . . .” Judgment in the plaintiff's favor on such a claim would not imply the
invalidity of his conviction or sentence. See Murray v. Dobbs, 09-cv-02021-LTB-MJW,
2010 WL 3522564, at *6 (D. Colo. July 29, 2010). As such, Plaintiff's claim asserting
that a state hearing procedure was not followed is proper under 42 U.S.C. § 1983. See
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Reed v. McKune, 298 F.3d 946, 954 (10th Cir. 2002).
Upon completion of the Court’s review pursuant to D.C.COLO.LCivR 8.2C, the
Court has determined that Plaintiff’s claim challenging the delay in his 2010 parole
revocation hearing does not appear to be appropriate for summary dismissal. The case
will therefore be drawn to a district judge and to a magistrate judge. See
D.C.COLO.LCivR 8.2D. Accordingly, it is
ORDERED that Mr. Stewart’s § 1983 claim asserting that Colorado parole
officers failed to submit necessary referral paperwork to contracting agencies for his
participation in a drug and alcohol treatment is dismissed, with prejudice, for failure to
state a constitutional violation. It is
FURTHER ORDERED that to the extent Mr. Stewart challenges the
constitutionality of his current detention pending a parole revocation hearing, his claim is
barred by the rule of Heck v. Humphrey, 512 U.S. 477 (1994), and is dismissed without
prejudice. It is
FURTHER ORDERED that this case shall be drawn to a district judge and to a
magistrate judge.

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DATED at Denver, Colorado, this 18th day of January, 2012.
BY THE COURT:

s/Craig B. Shaffer
Craig B. Shaffer
United States Magistrate Judge

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