Melanson v. Chairperson(s) of Colorado Parole Board

Filing 9

ORDER of Dismissal. ORDERED that the Complaint and action are dismissed. FURTHER ORDERED that leave to proceed in forma pauperis on appeal is denied, by Judge Lewis T. Babcock on 10/2/12. (lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-02199-BNB

ROY A. MELANSON,
Plaintiff,
v.
NAMES UNKNOWN, CHAIRPERSON(S) OF COLORADO PAROLE BOARD, et al.,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Roy A. Melanson, is in the custody of the Colorado Department of
Corrections (DOC) and currently is incarcerated at the correctional complex in Sterling,
Colorado. On August 17, 2012, Mr. Melanson, acting pro se, submitted a Prisoner
Complaint and a Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant to 28
U.S.C. § 1915. Mr. Melanson was granted leave to proceed pursuant to § 1915 and
paid an initial partial filing fee on September 17, 2012.
The Court must construe the Complaint liberally because Mr. Melanson 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). The Court, however, should not act as
an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated
below, the Court will dismiss the instant action.
Mr. Melanson asserts that his due process and equal protection rights are being
violated. He claims that he was sentenced under the wrong provisions of Colo. Rev.
Stat. § 17-22.5-104, and as a result he will not be considered for parole until he has

served twenty years of his life sentence. Mr. Melanson also contends that the
sentencing court does not have jurisdiction to set the eligibility date and in doing so
circumvented state law. Mr. Melanson further contends that the DOC is responsible for
establishing a parole eligibility date but that the Parole Board has failed to acknowledge
his right to a parole eligibility date within ten years of his conviction date. Mr. Melanson
further asserts that he is not suggesting his conviction is void so his claims do not
implicate Heck v. Humphrey, 512 U.S. 477 (1994). Finally, Mr. Melanson seeks money
damages as relief.
Mr. Melanson’s due process claim lacks merit. The Due Process Clause applies
to parole proceedings only when the state parole statute creates a legitimate
expectation of release. See Greenholtz v. Inmates of the Nebraska Penal and
Correctional Complex, 442 U.S. 1, 7 (1979) (To possess an interest protectable under
the Due Process Clause, a person must “ ‘have a legitimate claim of entitlement to it’ ”)
(quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). Colorado’s parole
statute in effect at the time Mr. Melanson was convicted and sentenced provides that
the parole board “may parole any person . . . when such person has served his
minimum sentence, less time allowed for good behavior, and there is a strong and
reasonable probability that the person will not thereafter violate the law . . . .” Colo.
Rev. Stat. § 17-2-201(4)(a) (1993) (emphasis added). The parole statute currently in
effect reads the same, except for the reference to “his or her minimum sentence.” Colo.
Rev. Stat. § 17-2-201(4)(a) (2012). This discretionary language does not give rise to a
liberty interest protected by the Due Process Clause. See Bd. of Pardons v. Allen, 482
U.S. 369, 379 n.10 (1987) (“[S]tatutes or regulations that provide that a parole board

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‘may’ release an inmate on parole do not give rise to a protected liberty interest.”); see
also Malek v. Haun, 26 F.3d 1013, 1015-16 (10th Cir. 1994) (holding that Utah statute
granted parole board complete discretion in making parole decisions and therefore did
not create a liberty interest entitled to due process protection). As such, Mr. Melanson
cannot invoke § 1983 as a basis for challenging the length of time he must wait before
receiving a parole eligibility date. See Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir.
1995) (court held that inmate who has “no liberty interest in obtaining parole. . . , [ ]
cannot complain of the constitutionality of procedural devices attendant to parole
decisions”).
Mr. Melanson’s equal protection claim also lacks merit. Mr. Melanson may not
rely on vague and conclusory allegations that his rights have been violated. See Fogle
v. Pierson, 435 F.3d 1252, 1263 n.7 (10th Cir. 2006). Even reading Mr. Melanson’s
claims liberally, he fails to make a rational argument on the law and facts supporting an
equal protection claim. Mr. Melanson fails to assert how he was treated differently from
other similarly situated inmates in the establishing of his parole eligibility date. See
Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996).
The Court, therefore, finds that Mr. Melanson’s claims are subject to dismissal
because he fails to state a nonfrivolous claim.
Finally, the Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this Order is not taken in good faith, and, therefore, in forma pauperis status will be
denied for the purpose of appeal. See Coppedge v. United States, 369 U.S. 438
(1962). If Mr. Melanson files a notice of appeal he must pay the full $455 appellate

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filing fee or file a motion to proceed in forma pauperis in the United States Court of
Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App. P. 24.
The Court also notes that on three or more prior occasions, Mr. Melanson has
brought an action that was dismissed on the grounds that it is frivolous or failed to state
a claim upon which relief may be granted. Melanson v. Swindler, No. 09-cv-02405-ZLW
(D. Colo. Dec. 15, 2009) (dismissed as legally frivolous pursuant to 28 U.S.C. §
1915(e)(2)(B)(I)); Melanson v. Persons Unknown, No. 06-cv-02484-ZLW (D. Colo. Jan.
11, 2007) (barred pursuant to Heck v. Humphrey, 512 U.S. 477 (1994); Melanson v.
Murdie, et al., No. 93-cv-00507-RPM (D. Colo. July 6, 1993) (dismissed for failure to
state a claim), appeal dismissed, No. 93-1283 (10th Cir. Nov. 17, 1993) (dismissed for
lack of prosecution). The Court’s determination in each of the above-noted cases, that
the case qualified as a strike under § 1915(g), was in keeping with Hafed v. Fed.
Bureau of Prisons, et al., 635 F.3d 1172 (10th Cir. 2011). The Court, therefore, would
also deny leave to proceed in forma pauperis on appeal because Mr. Melanson is
subject to § 1915(g) filing restrictions. Accordingly, it is
ORDERED that the Complaint and action are dismissed pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(I). It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this

2nd day of

October

, 2012.

BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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