Swiney v. Evans

Filing 6

ORDER of DISMISSAL. ORDERED that leave to proceed in forma pauperis on appeal is denied without prejudice to the filing of a motion seeking leave to proceed in forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit. By Judge Lewis T. Babcock on 3/10/2014. (trlee, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-00659-BNB
CEOLA BEN SWINEY,
Plaintiff,
v.
RICKY EVANS,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Ceola Ben Swiney, currently is incarcerated at the Arapahoe County
Detention Facility in Centennial, Colorado. Mr. Swiney filed pro se a Prisoner Complaint
(ECF No. 1) pursuant to 42 U.S.C. § 1983 for money damages and a Prisoner’s Motion
and Affidavit for Leave to Proceed Pursuant to 28 U.S.C. § 1915 (ECF No. 3).
Mr. Swiney has been granted leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 in this action. See ECF No. 4. Pursuant to § 1915(e)(2)(B)(i), the Court
must dismiss the action if the claims Mr. Swiney asserts are frivolous. A legally
frivolous claim is one in which the plaintiff asserts the violation of a legal interest that
clearly does not exist or asserts facts that do not support an arguable claim. See
Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). For the reasons stated below, the
Court will dismiss the instant action.
The Court must construe the Prisoner Complaint liberally because Mr. Swiney 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 Prisoner 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. Swiney contends that on November 10, 2013, Defendant, Ricky Evans, his
parole officer, placed a parole hold on him for new felony charges he contends were
dismissed three days later on November 13, 2013. He complains that Mr. Evans would
not release him from the downtown Denver detention center because the district
attorney was going to refile the dismissed charges, which were refiled on December 4,
2013. Mr. Swiney complains he was illegally incarcerated for twenty-one days between
November 13 and December 4 (claim one). He also complains he suffered mental
anguish while confined at the downtown Denver detention center because he suffers
from a sleep disorder and was subjected to twenty-three hour lockdown with no human
contact other than the deputies (claim two).
Mr. Swiney’s claim for damages base on the allegedly wrongful confinement at
the Denver detention center must be dismissed as barred by the rule in Heck v.
Humphrey, 512 U.S. 477 (1994). Pursuant to Heck, if a judgment for damages
necessarily would imply the invalidity of a criminal conviction or sentence, the 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 the issuance of a federal habeas writ. See Heck, 512 U.S. at 486-87.
2

Although Mr. Swiney is not challenging the validity of a conviction or sentence, the rule
in Heck also applies to other claims that challenge the validity of the length of an
inmate’s confinement. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (per
curiam) (stating that Heck applies to proceedings related to parole and probation); see
also Griffin v. Hickenlooper, No. 12-cv-01379-BNB, 2012 WL 3962703 (D. Colo. Sept.
10, 2012) (not published) (plaintiff’s claim regarding allegedly illegal imprisonment
pursuant to parole hold following arrest barred by the rule in Heck). In short, a civil
rights action filed by a state prisoner “is barred (absent prior invalidation) – no matter
the relief sought (damages or equitable relief), no matter the target of the prisoner’s suit
(state conduct leading to conviction or internal prison proceedings) – if success in that
action would necessarily demonstrate the invalidity of confinement or its duration.”
Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Mr. Swiney’s claim challenging the allegedly illegal parole hold implicates the
validity of his confinement pursuant to that parole hold. Mr. Swiney does not allege, and
there is no indication in the Prisoner Complaint, that he has invalidated the allegedly
illegal confinement he is challenging. Therefore, Mr. Swiney’s claim for damages
challenging the allegedly illegal parole hold is barred by the rule in Heck and must be
dismissed.
Mr. Swiney’s claim that he suffered mental anguish while confined at the
downtown Denver detention center is legally frivolous and must be dismissed. Plaintiff
does not allege he suffered any physical injury at the hands of Defendant. Therefore,
even if Plaintiff’s Prisoner Complaint stated a cause of action under § 1983, it would be
barred by 42 U.S.C. § 1997e(e) because Plaintiff has failed to allege a prior physical
3

injury. In addition, merely making vague and conclusory allegations that his federal
constitutional rights have been violated does not entitle a pro se pleader to a day in
court, regardless of how liberally the court construes such pleadings. See Ketchum v.
Cruz, 775 F. Supp. 1399, 1403 (D. Colo. 1991), aff’d, 961 F.2d 916 (10th Cir. 1992).
“[I]n analyzing the sufficiency of the plaintiff’s complaint, the court need accept as true
only the plaintiff’s well-pleaded factual contentions, not his conclusory allegations.” Hall,
935 F.2d at 1110.
The Court certifies pursuant to 28 U.S.C. § 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 Plaintiff files a notice of appeal he also must pay the full $505.00 appellate
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.
Accordingly, it is
ORDERED that Plaintiff’s illegal parole hold claim (claim one) is dismissed
without prejudice as barred by the rule in Heck v. Humphrey, 512 U.S. 477 (1994). It is
FURTHER ORDERED that Mr. Griffin’s mental anguish claim (claim two) is
dismissed as legally frivolous pursuant to 28 U.S.C. § 1915(e)(2)(b). It is

4

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied without prejudice to the filing of 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 the clerk of the Court correct the docketing records
for this case to include Plaintiff’s middle name “Ben” listed on the Prisoner Complaint. It
is
FURTHER ORDERED that any pending motions are dismissed as moot.
DATED at Denver, Colorado, this

10th day of

March

, 2014.

BY THE COURT:

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

5