Ray v. Raemisch

Filing 6

ORDER dismissing this action without prejudice, and denying without prejudice leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 12/4/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-03066-GPG
LISCO F. RAY III,
Plaintiff,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections,
Defendant.

ORDER OF DISMISSAL

Plaintiff, Lisco F. Ray III, was a prisoner in the custody of the Colorado
Department of Corrections incarcerated at Four Mile Correctional Center in Canón City,
Colorado when he initiated this action by filing pro se a Prisoner Complaint (ECF No. 1)
pursuant to 42 U.S.C. § 1983. He has been granted leave to proceed in forma
pauperis.
The Court must construe the Prisoner Complaint liberally because Mr. Ray 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.

In the Complaint, Mr. Ray asserts two claims contending that he was unlawfully
imprisoned past his proper release date. Construing the allegations liberally, Mr. Ray
appears to argue that the Colorado Department of Corrections (“CDOC”) did not
correctly deduct from his state sentences good and earned time credits that he was
statutorily entitled to receive. He claims that he should have received fifteen days of
good time each month pursuant to Colo. Rev. Stat. § 17-22.5-301(1) and that the good
time should have been deducted from his state sentences. He also claims that he
should have received up to thirty days of earned time every six months pursuant to
Colo. Rev. Stat. § 17-22.5-302 and that the earned time also should have been
deducted from his sentences. He contends that he “served, approximately 27 months,
in excess of the time he should have served” and that he is entitled to “monetary relief
at the rate of $300.00 per day for each day incarcerated past the proper time.”
Construing the allegations liberally, it appears that Mr. Ray is attempting to assert
due process claims. The United States Constitution guarantees due process when a
person is to be deprived of life, liberty, or property. See Templeman v. Gunter, 16 F.3d
367, 369 (10th Cir. 1994). Based on the allegations, it appears that Mr. Ray contends
that he has been deprived of constitutionally protected liberty interests in good and
earned time credits created under Colorado state law.
State law may create a liberty interest if it imposes an “atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life.” Sandin v.
Conner, 515 U.S. 472, 484 (1995). Denying an inmate credits to which he has some
entitlement “would deprive him of a liberty interest if those credits advance his
mandatory date of release on parole.” Fogle v. Pierson, 435 F.3d 1252, 1262 (10th Cir.
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2006).
Mr. Ray’s claims are premised on the argument that Colorado state law has
created a constitutionally protected liberty interest in the good and earned time credits in
question because he was entitled to receive those credits and that the failure to deduct
the credits from his state sentences increased the duration of his incarceration.
Mr. Ray’s due process claims lack merit unless he is correct that he was entitled
to the credits in question and that the failure to deduct those credits actually increased
the duration of his incarceration. If Mr. Ray either was not entitled to those credits or
the failure to deduct those credits did not increase the duration of his incarceration, he
cannot demonstrate that he has been deprived of a constitutionally protected liberty
interest. See Fogle, 435 F.3d at 1262. However, even if Mr. Ray was entitled to the
good and earned time credits in question and the failure to deduct those credits
necessarily increased the duration of his incarceration, the due process claims still must
be dismissed because the claims are 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. 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
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would necessarily demonstrate the invalidity of confinement or its duration.” Wilkinson
v. Dotson, 544 U.S. 74, 81-82 (2005).
As noted above, Mr. Ray specifically contends that he was entitled to the good
and earned time credits in question and that the failure to deduct those credits from his
sentence increased the duration of his incarceration by 27 months. Because a
judgment in Mr. Ray’s favor would necessarily imply the invalidity of the duration of his
sentence, the § 1983 complaint must be dismissed under Heck. See Kailey v. Ritter,
500 F. App’x 766, 768-69 (10th Cir. 2012) (§ 1983 complaint by prisoner challenging
failure to award meritorious sentence reduction credits allegedly required under state
law “necessarily impl[ies] the invalidity of his sentence” and “must be dismissed unless
Mr. Kailey can show that the sentence has already been invalidated”).
Mr. Ray does not allege that his state sentences have already been invalidated
due to CDOC’s failure to award and deduct the good and earned time credits in
question. Thus, the due process claims are barred by the rule in Heck and must be
dismissed. The dismissal will be without prejudice. See Fottler v. United States, 73
F.3d 1064, 1065 (10th Cir. 1996).
Furthermore, 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
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
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ORDERED that the Prisoner Complaint and the action are dismissed without
prejudice. It is
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.
DATED at Denver, Colorado, this 4th

day of

December

BY THE COURT:

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

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, 2014.