Tafoya v. Raemisch et al

Filing 10

ORDER dismissing this action with prejudice, and denying leave to proceed in forma pauperis on appeal, by Judge Lewis T. Babcock on 9/18/15. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 15-cv-01411-GPG
ANTHONY TAFOYA,
Plaintiff,
v.
STATE OF COLORADO,
RICK RAEMISCH, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
ROGER WERHOLZ, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
TONY CAROCHI, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
TOM CLEMENTS, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
ARISTEDES ZAVARIS, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
JOE ORTIZ, in his official capacity as Executive Director of the Colorado Department of
Corrections, and in his individual capacity,
JOHN SUTHERS, in his official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
MARY CARLSON, in her official capacity as Time Computation Manager of Colorado
Department of Corrections, and in her individual capacity, and
JOHN DOE, in his/her official capacity as Executive Director of the Colorado
Department of Corrections, and in his individual capacity,
Defendants.

ORDER OF DISMISSAL

Plaintiff Anthony Tafoya is in the custody of the Colorado Department of
Corrections and currently is incarcerated at the Trinidad Correctional Facility in Model,
Colorado. Plaintiff initiated this action on July 2, 2015, by submitting a Prisoner
Complaint (ECF No. 1), Prisoner’s Motion and Affidavit for Leave to Proceed Pursuant

to 28 U.S.C.§ 1915 (ECF No. 3), Plaintiff’s First Request for Production of Documents
(ECF No. 4), and Motion for Appointment of Counsel (ECF No. 5). Plaintiff was granted
leave to proceed pursuant to § 1915.
On July 24, 2015, Magistrate Judge Gordon P. Gallagher reviewed the Complaint
and found as follows:
Plaintiff states in the Nature of the Case section of the complaint form that
this case involves DOC’s calculation of his mandatory release date (MRD).
(ECF No. 1 at 5).1 Plaintiff contends that under Colorado law the correct
method of calculating a mandatory release date is to take the number of
years an offender is sentenced, subtract the time actually served, and then
further reduce the ultimate sentence by any presentence credit, earned time,
and good time the offender has accumulated. Id. Plaintiff further contends
that the DOC is correct that it has discretion to award good time or earned
time or deduct presentence confinement credit for jail time, but once an
inmate accumulates earned or good time or presentence confinement time,
“it must be actually applied to his release dates.” Id. Plaintiff also contends
that he “was possibly denied discretionary parole” when he reached his
parole eligibility date (PED) because his MRD was perceived to be too far in
the future; as a result the miscalculation of the MRD results in miscalculation
of statutory discharge dates. Id. at 6. Finally, Plaintiff contends that the date
of his parole termination is being calculated in the same manner that Randel
Ankeney’s parole termination date was calculated, based on the Colorado
Court of Appeals (CCA) finding in Ankeney v. Raemisch, No. 2012ca1930
(Colo. App. Aug. 22, 2013). Id.
In all five claims, Plaintiff asserts that his constitutional rights are being
violated because he served a sentence beyond what he should have served
and Defendants are holding him beyond his statutory discharge date. Id. at
10-12. Plaintiff also asserts that he has a “vested liberty interest in all of the
good time and earned time which has been awarded to him under statute”
and that once the time has been awarded, “it must be applied as such.” Id.
Plaintiff further alleges that he has been prevented from progressing through
the DOC system for better jobs, programs, and placement because his MRD
is “too far out into the future.” Id. Plaintiff seeks declaratory and injunctive
relief as well as monetary damages.

1

The Court refers to the page number as identified by CM/ECF (Court
Management/Electronic Case Files).

2

On March 16, 2015, the Colorado Supreme Court (CSC) issued an opinion
in Ankeney v. Raemisch, et al., No. 13SA336 (Colo. 2015) (en banc), that
reversed the decision of the CCA and the Fremont District Court and
determined that inmates, such as Mr. Ankeney, are not entitled to have their
sentences calculated in the manner advocated by Mr. Ankeney. The CSC
found that for inmates whose crimes were committed after July 1, 1993, good
time credits awarded pursuant to Colo. Rev. Stat. § 17-22.5-301, and
and the earned time credits awarded pursuant to § 17-22.5-302(1), “do not
constitute the service of an inmate’s sentence but rather have significance
only for calculating his eligibility for release to parole.” Ankeney, No.
13SA336 at 11 (citing Jones v. Martinez, 799 P.2d 385, 387 (Colo. 1990);
Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990); Bynum v. Kautzky, 784
P.2d 735, 738-39 (Colo. 1989); Renneke v. Kautzky, 782 P.2d 343, 345
(Colo. 1989)). Furthermore, the plaintiffs in the proposed class action suit,
Ankeney, et al., v. Raemisch, et al., No. 14-cv-00007-MSK-KMT (D. Colo.
Mar. 26, 2015), that was pursued in this Court based on the CCA’s finding in
Ankeney, now have voluntarily dismissed the action in light of the CSC’s
reversal of the CCA’s judgment in Ankeney. See Ankeney, No. 14-cv-00007MSK-KMT at ECF No. 66.
Show Cause Ord., ECF No. 7 at 2-4.
Magistrate Judge Gallagher then directed Plaintiff to respond and show cause
why this action should not be dismissed pursuant to the CSC’s recent decision in
Ankeney, No. 13SA336, which dispels Plaintiff’s claims. Plaintiff was warned that if he
failed to show cause within the time allowed the Court would dismiss the action with
prejudice. Plaintiff did not respond to the Show Cause Order within the time allowed.
The Court, therefore, will dismiss this action.
The Court also 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.
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Accordingly, it is
ORDERED that the Complaint and action are dismissed with prejudice pursuant
to Ankeney v. Raemisch, et al., No. 13SA336 (Colo. 2015). It is
FURTHER ORDERED that leave to proceed in forma pauperis on appeal is
denied.
DATED at Denver, Colorado, this 18th day of

September , 2015.

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

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