McConnell v. Abeyta et al

Filing 9

ORDER dismissing this action, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 3/21/14. 8 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is granted and 3 Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 is denied as moot. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00274-BNB
FRANKIE L. MCCONNELL,
Plaintiff,
v.
MICHELLE ABEYTA,
JOHN SCOLERI,
LAURA TAFOYA, and
K. STEENBERGEN,
Defendants.

ORDER OF DISMISSAL

Plaintiff, Frankie L. McConnell, currently resides at the Samaritan House
Homeless Shelter in Denver, Colorado. She fails to clarify whether she is on parole.
Ms. McConnell submitted pro se a Prisoner Complaint (ECF No. 1) and an amendment
to the Prisoner Complaint (ECF No. 7). She asks for money damages and appears to
ask for the restoration of lost earned-time credits. See ECF No. 7 at 1.
The Motion and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 Ms.
McConnell submitted on February 11, 2014 (ECF No. 8), will be granted. The Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 she submitted on
January 30, 2014 (ECF No. 3) will be denied as moot. The Court must construe the
Prisoner Complaint, as amended, liberally because Ms. McConnell 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). However, the Court should not act as an

advocate for pro se litigants. See Hall, 935 F.2d at 1110. For the reasons discussed
below, the Court will dismiss the Prisoner Complaint, as amended, and this action as
legally frivolous.
Ms. McConnell challenges a disciplinary report she received while incarcerated
from Defendant, Michelle Abeyta, charging her with threats and disobeying a lawful
order. She alleges she was falsely convicted on January 12, 2012, by Defendants,
John Scoleri and K. Steenbergen, hearing officers at her disciplinary hearing, and
sanctioned by twenty days of punitive segregation and the loss of thirty days of earnedtime credits. She complains that Defendant, Laurie Tafoya, upheld the conviction on
appeal. Because Ms. McConnell fails to allege a constitutional violation, the Court will
construe Ms. McConnell’s allegations liberally as a claim that her due process rights
were violated in connection with the prison disciplinary action.
The threshold issue is whether Ms. McConnell alleges facts that implicate a
constitutionally protected liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557-58
(1974). A liberty interest protected by due process may arise under the Due Process
Clause itself or state law. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
Prison discipline does not implicate a liberty interest that arises under the Due
Process Clause itself because prisoners are not entitled to any particular degree of
liberty. See Meachum v. Fano, 427 U.S. 215, 225 (1976); Templeman v. Gunter, 16
F.3d 367, 369 (10th Cir. 1994). In short, the Due Process Clause does not protect
every change in the conditions of confinement that has a substantial adverse impact on
the prisoner. See Meachum, 427 U.S. at 224. Therefore, the only pertinent question is
whether the disciplinary conviction implicates a protected liberty interest that arises
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under state law. “For inmates being punished for misconduct, a liberty interest exists
only when the penalty lengthens the confinement or involves an ‘atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.’” Meek v.
Jordan, 534 F. App’x 762, 765 (10th Cir. 2013) (quoting Sandin v. Conner, 515 U.S.
472, 484 (1995)). Otherwise, an inmate must show that the punishment will “inevitably
affect the duration of his sentence.” Sandin, 515 U.S. at 487. Relevant factors to be
considered in determining whether certain conditions of confinement impose atypical
and significant hardship in relation to the ordinary incidents of prison life include whether
the conditions relate to and further a legitimate penological interest, whether the
conditions are extreme, whether the conditions increases the duration of confinement,
and whether the conditions are indeterminate. See DiMarco v. Wyo. Dep’t of Corr., 473
F.3d 1334, 1342 (10th Cir. 2007).
That Ms. McConnell received twenty days of punitive segregation did not subject
her to an atypical and significant hardship in relation to the ordinary incidents of prison
life. See, e.g., Meek, 534 F. App’x at 765 (finding that sixty days in punitive segregation
as a disciplinary sanction did not implicate a protected liberty interest).
Furthermore, the forfeiture of earned-time credits in conjunction with a prison
disciplinary conviction does not implicate a constitutionally protected liberty interest
because generally earned-time credits do not count as service of the inmate’s sentence,
but rather serve only to establish parole eligibility. See Kailey v. Price, 497 F. App’x
835, 835-36 (10th Cir. Sept. 27, 2013) (citing Jones v. Martínez, 799 P.2d 385, 387-88
& n. 5 (Colo.1990) (collecting cases)), and Thiret v. Kautzky, 792 P.2d 801, 805-07
(Colo.1990) (only those inmates sentenced to a crime committed after July 1, 1979, but
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before July 1, 1985, are entitled to mandatory parole; for other offenders, parole is
discretionary). The loss of earned-time credits for an inmate subject to discretionary
parole does not inevitably affect the length of his confinement because the decision to
release an inmate on parole “rests on a myriad of considerations.” Sandin, 515 U.S. at
487.
If Ms. McConnell is within the category of offenders entitled to mandatory parole,
she may not seek restoration of the forfeited earned-time credits in this § 1983 action.
Instead, she must first pursue the due process claim in a separate habeas corpus
proceeding under 28 U.S.C. § 2241. See Muhammad v. Close, 540 U.S. 749, 750-51
(2004) (per curiam) (discussing Heck v. Humphrey, 512 U.S. 477 (1994), and Edwards
v. Balisok, 520 U.S. 641 (1997)); see also Brown v. Smith, 828 F.2d 1493, 1495 (10th
Cir. 1987) (holding that a 28 U.S.C. § 2241 habeas petition is the appropriate means by
which to seek restoration of good-time credits rescinded at a disciplinary hearing).
However, because Ms. McConnell no longer is incarcerated and assuming she is on
parole, her request for restoration of her earned-time credits is moot at this time
because generally earned-time credits do not count as service of the inmate’s
sentence, but rather serve only to establish parole eligibility. See Kailey, 497 F. App’x
at 835-36.
Finally, the Court certifies pursuant to § 1915(a)(3) that any appeal from this
order would not be 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 Ms. McConnell files a notice of appeal she also must pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
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Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
Accordingly, it is
ORDERED that the Prisoner Complaint, as amended, and this action are
dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 8) is granted. It is
FURTHER ORDERED that the Motion and Affidavit for Leave to Proceed
Pursuant to 28 U.S.C. § 1915 (ECF No. 3) is denied as moot. It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied with leave to file a motion seeking leave to proceed in forma pauperis on appeal
in the United States Court of Appeals for the Tenth Circuit. It is
FURTHER ORDERED that any other pending motions are denied as moot.
DATED at Denver, Colorado, this

21st

day of

March

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK
Senior Judge, United States District Court

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