Calderon v. Allen et al

Filing 57

OPINION AND ORDER granting 36 Motion for Summary Judgment, and Plaintiff's motions to "Complement the Amended Response" and to "Complement the Records" ( 48 , 49 , 51 ), by Chief Judge Marcia S. Krieger on 9/8/14.(dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Marcia S. Krieger
Civil Action No. 12-cv-03344-MSK-BNB
RAUL PERMUY CALDERON,
Plaintiff,
v.
TIMOTHY HAND,
Defendant.
OPINION AND ORDER
GRANTING SUMMARY JUDGMENT
THIS MATTER comes before the Court on the Defendant Timothy Hand’s Motion for
Summary Judgment (#36). The Plaintiff Raul Permuy Calderon, proceeding pro se, 1 filed an
Amended Response (#46) to the motion. 2 The Defendant did not reply.
I. Facts
Having reviewed the record and the parties’ filings, the Court finds the following material
facts to be undisputed, or construed most favorably to the non-movant, here Mr. Calderon.

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The Court is mindful of Mr. Calderon’s pro se status, and accordingly, reads his pleadings
liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, such liberal construction is
intended merely to overlook technical formatting errors and other such defects in the Plaintiff’s
use of legal terminology and proper English. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). Pro se status does not relieve the Plaintiff of the duty to comply with various rules and
procedures governing litigants and counsel or the requirements of the substantive law, and in
these regards, the Court will treat the Plaintiff according to the same standard as counsel licensed
to practice law before the bar of this Court. See McNeil v. U.S., 508 U.S. 106, 113 (1993);
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
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Also pending before the Court are three motions by Mr. Calderon to “Complement the
Amended Response” and to “Complement the Records.” (#48, 49, 51). The Court grants the
motions and has considered those filings in ruling on the Defendant’s Motion for Summary
Judgment.
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On March 8, 2000, Mr. Calderon was convicted of a class three felony under state law.
He was sentenced to 12 years in the Colorado Department of Corrections (DOC), plus a
mandatory five-year parole period. Mr. Calderon was released on parole on April 14, 2010.
Following a hearing on September 16, 2011, the parole board revoked Mr. Calderon’s
parole for a period of 180 days. While re-incarcerated, Mr. Calderon committed a prison
violation. As a result, the parole board suspended automatic reinstitution of parole, pending
another hearing. The hearing occurred, and on January 17, 2012, the board rescinded its decision
to release Mr. Calderon on parole as originally scheduled, and instead extended the period of his
detention for an additional 120 days.
Mr. Calderon brings this action under 42 U.S.C. § 1983, alleging that Mr. Hand denied
him procedural Due Process under the Fourteenth Amendment to the United States Constitution
because as Director of the Division of Adult Parole, Mr. Hand was obligated but failed to
provide Mr. Calderon with a written complaint concerning the nature of the disciplinary charge
prior to the January 17, 2012 hearing.
Mr. Hand moves for summary judgment, arguing that (i) Mr. Calderon cannot establish
that he was deprived of a constitutionally protected interest; (ii) Mr. Hand did not personally
participate in the alleged constitutional violation; (iii) Mr. Hand is entitled to qualified immunity;
(iv) Mr. Calderon’s claim for compensatory damages is barred by the Prison Litigation Reform
Act, 42 U.S.C. § 1997e(e); and (v) Mr. Calderon cannot establish that he is entitled to punitive
damages.

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II. Summary Judgment Standard
Rule 56 of the Federal Rules of Civil Procedure facilitates the entry of a judgment only if
no trial is necessary. See White v. York Intern. Corp., 45 F.3d 357, 360 (10th Cir. 1995).
Summary adjudication is authorized when there is no genuine dispute as to any material fact and
a party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). Substantive law governs
what facts are material and what issues must be determined. It also specifies the elements that
must be proved for a given claim or defense, sets the standard of proof and identifies the party
with the burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Kaiser-Francis Oil Co. v. Producer’s Gas Co., 870 F.2d 563, 565 (10th Cir. 1989). A factual
dispute is “genuine” and summary judgment is precluded if the evidence presented in support of
and opposition to the motion is so contradictory that, if presented at trial, a judgment could enter
for either party. See Anderson, 477 U.S. at 248. When considering a summary judgment
motion, a court views all evidence in the light most favorable to the non-moving party, thereby
favoring the right to a trial. See Garrett v. Hewlett Packard Co., 305 F.3d 1210, 1213 (10th Cir.
2002).
If the movant has the burden of proof on a claim or defense, the movant must establish
every element of its claim or defense by sufficient, competent evidence. See Fed. R. Civ. P.
56(c)(1)(A). Once the moving party has met its burden, to avoid summary judgment the
responding party must present sufficient, competent, contradictory evidence to establish a
genuine factual dispute. See Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th
Cir. 1991); Perry v. Woodward, 199 F.3d 1126, 1131 (10th Cir. 1999). If there is a genuine
dispute as to a material fact, a trial is required. If there is no genuine dispute as to any material

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fact, no trial is required. The court then applies the law to the undisputed facts and enters
judgment.
If the moving party does not have the burden of proof at trial, it must point to an absence
of sufficient evidence to establish the claim or defense that the non-movant is obligated to prove.
If the respondent comes forward with sufficient competent evidence to establish a prima facie
claim or defense, a trial is required. If the respondent fails to produce sufficient competent
evidence to establish its claim or defense, then the movant is entitled to judgment as a matter of
law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
III. Analysis
Mr. Calderon’s parole was revoked in September 2011, and he does not challenge the
procedure afforded him with regard to his original parole revocation. Rather, he complains about
the procedure preceding the parole board’s decision in January 2012 to delay his release beyond
the anticipated 180 days. He contends that he was entitled to, but denied, written notice prior to
the hearing.
Before addressing the parties’ arguments, the Court pauses to focus on the Colorado law
upon which Mr. Calerdon premises his right to notice. The Colorado parole statute provides that
if the parole board “determines that the parolee has violated any condition of parole other than
commission of a crime” it then has discretion to “[r]evoke parole for a period not to exceed one
hundred eighty days.” C.R.S. § 17-2-103(11)(b)(II)(B). However, “[t]he board may extend a
period of parole revocation imposed pursuant to [this or other similar provisions] beyond the
specified maximum if the parolee violates a condition of the parolee’s placement pursuant
to the notice and hearing procedures in this section.” C.R.S. § 17-2-103(11)(b)(II.5)
(emphasis added). The notice and hearing procedures referred to appear to be those set out in

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C.R.S. § 17-2-103(6)(a) and § 17-2-103(8). They require that copies of parole revocation
complaints be given to the parolee “a reasonable length of time before any parole board hearing.”
and that “[p]rior to appearance before the board, a parolee shall be advised in writing by the
director of the division of adult parole concerning the nature of the charges that are alleged to
justify revocation of parole and the substance of the evidence sustaining the charges . . . .”
Mr. Hand makes a number of arguments, but the resolution of his first obviates the need
to address the remainder. Mr. Hand first argues that Mr. Calderon cannot establish the lack of
notice before the January 2012 hearing constituted a violation of his constitutional right to Due
Process under the Fourteenth Amendment to the United States Constitution.
The Due Process Clause states, “No State shall . . . deprive any person of life, liberty, or
property, without due process of law.” U.S. Const. amend. XIV, § 1. To establish a violation of
the procedural due process a plaintiff must satisfy a two-step inquiry: (1) show that the plaintiff
was deprived of an interest in “life, liberty, or property,” and (2) show that the procedures
followed by the government did not comport with “due process of law.” Elliott v. Martinez, 675
F.3d 1241, 1244 (10th Cir. 2012).
With regard to the first prong, a protected interest in liberty or property may have its
source in either federal or state law. See Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460
(1989); Bd. of Regents of State Coll. v. Roth, 408 U.S. 564, 577 (1972). A state-created interest
is not protected by the procedural component of the Due Process Clause unless the interest is an
entitlement — that is, unless the asserted right to property or liberty is mandated by state law
when specified substantive predicates exist. See Elliott, 675 F.3d at 1244. In other words, the
Due Process Clause protects “substantive rights, not rights to procedure.” Id.

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In the context of parole, a state’s parole statute may create a liberty interest but only if a
statute’s language and application significantly limits the discretion of a parole board. See
Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1212 (10th Cir. 2009). The liberty interest in
being released on parole does not qualify for due-process protection unless there are substantive
predicates that mandate release. See Greenholtz v. Inmates of Nebraska Penal and Correctional
Complex, 442 U.S. 1, 10 (1979).
Mr. Calderon contends that he had a substantive right to be released on parole at the end
of 180 days and that he was denied that liberty interest without adequate notice. It is true that the
parole board initially revoked Mr. Calderon’s parole for a period of 180 days. But during that
period, Mr. Calderon committed a prison violation, which resulted in the parole board extending
the terms of Mr. Calderon’s parole revocation. Colorado’s parole statute expressly grants the
parole board the authority to extend a parole revocation period beyond its initial length if the
parolee violates a condition of his confinement. C.R.S. § 17-2-103(11)(b)(II.5). Thus, based on
the plain language of the statute, it was within the parole board’s discretion to extend the length
of Mr. Calderon’s parole revocation.
The Court appreciates that Mr. Calderon expected that he would be released at the end of
180 days, but the parole board was not obligated to do so. Mr. Calderon’s expectation of release
is not the same as an entitlement to release. See Jago v. Van Curen, 454 U.S. 14, 17 (1981).
Without a legitimate entitlement to release, either by a mandate by Colorado law or a limitation
on the parole board’s discretion to extend his parole revocation, Mr. Calderon cannot show that
he had a liberty interest that was compromised. 3 In the absence of a showing of deprivation of a
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And in the absence of a deprivation of a constitutionally protected interest, lack of notice under
C.R.S. §§ 17-2-103(6)(a) and -103(8) before the January 17 hearing does not give rise to a claim
under 42 U.S.C. § 1983. Although the notice provisions create an expectation in a certain
procedure — that is, an entitlement to notice before a parole revocation hearing—“[a]n
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protected liberty interest, Mr. Hand is entitled to judgment in his favor on this basis.
Accordingly, the Court need not address the other arguments presented in Mr. Hand’s Motion for
Summary Judgment.
IV. Conclusion
For the forgoing reasons, the Defendant’s Motion for Summary Judgment (#36) is
GRANTED. The Clerk shall enter judgment in the Defendant’s favor on Plaintiff’s claim under
42 U.S.C. § 1983 and shall close this case. The Plaintiff’s motions to “Complement the
Amended Response” and to “Complement the Records” (#48, 49, 51) are GRANTED.
Dated this 8th day of September, 2014.
BY THE COURT:

Marcia S. Krieger
Chief United States District Judge

entitlement to nothing but procedure cannot be the basis for a liberty or property interest.” Stein
v. Disciplinary Bd. of Sup. Ct. of N.M., 520 F.3d 1183, 1192 (10th Cir. 2008).
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