Free Objection to Report and Recommendations - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 01-cv-01315-REB-CBS LEONARD BALDAUF, Plaintiff, v. JOHN HYATT, et. al. Defendants.

DEFENDANTS' OBJECTION TO RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan (hereinafter collectively "Defendants"), by and through their counsel, Andrew D. Ringel, Esq. and Gillian Dale, Esq. of Hall & Evans, L.L.C., hereby submit this Objection to Recommendation of United States Magistrate Judge, as follows: 1 I. INTRODUCTION AND PROCEDURAL HISTORY On July 11, 2001, Plaintiff Leonard Baldauf, an inmate incarcerated by the Colorado Department of Corrections ("DOC"), filed his Complaint alleging claims against
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Counsel for the Defendants believes the lengthy presentation in this Objection is necessary for this Court to understand the important issues raised by this Objection. Counsel for the Defendant has presented background factual and legal information that was also contained in the Defendants' Jurisdictional Brief for the ease of this Court.

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the Defendants pursuant to 42 U.S.C. §1983 for violations of his constitutional rights. On November 19, 2001, all of the Defendants, except for Chad Nelson who was never served with the Plaintiff's Complaint, filed a Motion to Dismiss. [See Doc. 19].2

Defendants argued inter alia the Plaintiff's claims were barred by the doctrine announced by the United States Supreme Court in Heck v. Humphrey, 512 U.S. 477 (1994), because they represented an improper collateral attack on the Plaintiff's Code of Penal Discipline ("COPD") convictions. On March 3, 2003, United States Magistrate Judge Craig B. Shaffer issued a Recommendation of United States Magistrate Judge which recommended denying Plaintiff's Motion to Amend Complaint and granting the Defendants' Motion to Dismiss. [See Doc. 30]. The Recommendation inter alia Plaintiff filed an Objection to the

concluded Heck precluded the Plaintiff's claims.

Magistrate Judge's Recommendation on March 17, 2003. [See Doc. 31]. On March 25, 2003, this Court accepted the Magistrate Judge's Recommendation and denied the Plaintiff's Motion to Amend Complaint and granted the Defendants' Motion to Dismiss. [See Doc. 32]. Judgment entered in favor of the Defendants on March 27, 2003. [See Doc. 33]. Plaintiff filed a Notice of Appeal on April 24, 2003. [See Doc. 34]. On January 26, 2005, the United States Court of Appeals for the Tenth Circuit issued an Order and Judgment on the Plaintiff's appeal. The Tenth Circuit Order and Judgment, in pertinent part, states as follows:

For ease of reference, the Defendants cite to this Court's docket sheet numbers to assist the Court's review of the extensive procedural history of this matter. 2

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As the parties agree, the threshold issue before us is whether the Heck doctrine, see Heck v. Humphrey, 512 U.S. 477 (1994), bars jurisdiction in this case. Whether Heck applies depends on whether deprivation of good-time or earned-time credits necessarily affects the duration of a Colorado prisoner's confinement. The record is inadequate to resolve this matter, and both counsel at oral argument sought remand to the district court for development of the record. Accordingly, we REMAND to the district court for further proceedings concerning whether, under the Heck doctrine, the district court has jurisdiction to hear Mr. Baldauf's claims. If the court determines that it has jurisdiction, it should decide the merits, conducting any further proceedings that it deems necessary. [See Order and Judgment, at 2]. On remand to this Court by the Tenth Circuit, a status conference was held before Magistrate Judge Shaffer on August 10, 2005. The Magistrate Judge directed the parties to submit jurisdictional briefs on the Heck issue raised by the Tenth Circuit's remand. Defendants filed their Jurisdictional Brief on September 12, 2005, [see [See

Doc.65], and Plaintiff filed his Brief on Jurisdiction on September 14, 2005.

Doc.68]. Each party filed a response to the opposing party's jurisdictional brief. [See Docs. 69, 70]. On January 3, 2006, Magistrate Judge Shaffer issued his

Recommendation of United States Magistrate Judge (the "Recommendation"), recommending this Court determine Plaintiff's claims are not barred by the Heck doctrine and the Court therefore has subject matter jurisdiction to review such claims. Pursuant to 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b), Defendants now object to the Recommendation and request this Court determine Plaintiff's claims are barred by the Heck doctrine.

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II. STANDARD OF REVIEW Pursuant to 28 U.S.C. §636(b)(1) and Fed. R. Civ. P. 72(b), a District Court reviewing a magistrate judge's recommendation must make a de novo determination as to any portion of the recommendation to which a party has filed a specific writte n objection. See also Malik v. Arapahoe County Dep't of Social Servs., 987 F. Supp. 868, 871 (D. Colo. 1997). This Court may accept, reject, or modify the

recommendation, in whole or in part, and may also receive additional evidence or remand the matter to the Magistrate Judge with instructions. See 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b). Failure to object to a factual finding or legal conclusion in a magistrate judge's report results in a waiver of the right to appeal the particular issue to both the district court and the court of appeals. See Thomas v. Arn, 474 U.S. 140, 155 (1985); In re Carpenter, 205 F.3d 1249, 1253 (10th Cir. 2000). The Heck doctrine implicates this Court's subject matter jurisdiction. See, e.g., Fritz v. State of Colorado, 223 F.Supp.2d 1197, 1199-1203 (D. Colo. 2002); Murphy v. Martin, 343 F.Supp.2d 603, 609 & n. 1 (E.D. Mich. 2004); Hawkins v. City of Greenville, 101 F.Supp.2d 1356, 1361 n. 2 (M.D. Ala. 2000). As such, this Court reviews the applicability of Heck to the instant case pursuant to Fed. R. Civ. P. 12(b)(1). See Fritz, 223 F.Supp.2d at 1199-1203. A party challenging a federal court's

jurisdiction need not accept the factual allegations of the complaint as true. Instead, a "party may go beyond allegations contained in the complaint and challenge the facts upon which subject matter jurisdiction is based." Stuart v. Colorado Interstate Gas Co., 271 F.3d 1221, 1225 (10th Cir. 2001); Raccoon Recovery, LLC v. Navoi Mining

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& Metallurgical Kominat, 244 F.Supp.2d 1130, 1136 (D. Colo. 2002).

A court

reviewing its jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1) "has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts." Pringle v. United States, 208 F.3d 1220, 1222 (10th Cir. 2000); Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). Consideration of matters outside of the pleadings pursuant to Fed. R. Civ. P. 12(b)(1) does not convert the motion to a motion for summary judgment pursuant to Fed. R. Civ. P. 56. See Stuart, 271 F.3d at 1225. III. STATEMENT OF UNDISPUTED FACTS 1. Plaintiff Leonard Baldauf began his incarceration in the DOC on [See Baldauf Official Time

September 11, 1998, for a twenty-four year sentence.

Computation Report, Exh. 1 to Declaration of Mary Carlson, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 2. Mr. Baldauf was incarcerated at Fremont Correctional Facility from

January 1999 to March 2000. [See Plaintiff's Answer to Motion to Dismiss, 12/24/01 (Doc. 25)]. 3. On April 11, 1999, Mr. Baldauf was charged with a violation of the COPD

for refusal to work. [See Notice of Charges, Case No. 991061, 4/11/99, Exh. A-2 to Defendants' Jurisdictional Brief, Doc. 65; Disciplinary Query Printout, Exh. 2 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc. 65].

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4.

A COPD hearing was held on April 21, 1999, and Mr. Baldauf was found

guilty of refusing to work in violation of the COPD. [See Disposition of Charges, Case No. 991061, 4/21/99, Exh. A-3 to Defendants' Jurisdictional Brief, Doc.65]. 5. As a result of his COPD conviction, Mr. Baldauf received ten days in

punitive segregation, probated for 90 days unless Mr. Baldauf received another Class I or Class II conviction under the COPD during that period of time. [See id.] 6. On July 20, 1999, Mr. Baldauf was charged with unauthorized possession

of another inmate's legal papers in violation of the COPD. [ ee Notice of Charges, S Case No. 000067, 7/20/99, Exh. A-4 to Defendants' Jurisdictional Brief, Doc.65]. 7. A hearing was held on July 29, 1999, and Mr. Baldauf was found guilty of

unauthorized possession in violation of the COPD. [See Disposition of Charges, Case No. 000067, 7/29/99, Exh. A-5 to Defendants' Jurisdictional Brief, Doc.65]. 8. As a result of his COPD conviction, Mr. Baldauf received fifteen days in

punitive segregation as well as ten additional days in punitive segregation for his earlier COPD conviction based on the revocation of probation from that conviction. [See id.] 9. In his Complaint, Mr. Baldauf alleges he was retaliated against by the

Defendants for seeking judicial review of his April 21, 1999, COPD conviction in, among other ways, by his July 29, 1999, COPD conviction and subsequent placement in punitive segregation. [See Plaintiff's Complaint, 7/11/01 (Doc. 3)]. 10. Due to Mr. Baldauf's COPD convictions of April 21, 1999, and July 29,

1999, Mr. Baldauf was not eligible and did not receive any award of earned time for the months of May, June, July, August and September 1999. [See Carlson Declaration, ¶8,

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Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65; Baldauf Official Time Computation Report, Exh. 1 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 11. Subsequently, Mr. Baldauf received additional COPD convictions on

September 28, 1999, November 2, 1999, and December 27, 1999. [See Disciplinary Query Printout, Exh. 2 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 12. Following Mr. Baldauf's five COPD convictions at Fremont Correctional

Facility, Mr. Baldauf was placed in administrative segregation and transferred to Colorado State Penitentiary. [See Notice of Administrative Segregation, Case No.

99/00-014, 12/29/99, Exh. A-6 to Defendants' Jurisdictional Brief, Doc.65; Classification Summary--Administrative Segregation Hearing, Case No. 99/00-014, 1/4/00, Exh. A-7 to Defendants' Jurisdictional Brief, Doc.65; Administrative Segregation Hearing Review, Case No. 99/00-014, 1/19/00, Exh. A-8 to Defendants' Jurisdictional Brief, Doc.65; Executive Assignment Order, 1/19/00, Exh. A-9 to Defendants' Jurisdictional Brief, Doc.65]. 13. As a result of Mr. Baldauf's placement in administrative segregation, Mr.

Baldauf was not eligible and did not receive any award of earned time from February 2000 through June 2003. [See Baldauf Official Time Computation Report, Exh. 1 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65].

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14.

The DOC has been charged by the Colorado General Assembly with

administering the sentences of offenders sentenced by the Colorado state courts. [See Carlson Declaration, ¶ 2, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 15. at ¶¶ 2-4]. 16. Good time is provided to an offender incarcerated by the DOC whose Colorado awards both good time and earned time for offenders. [See id.

conduct indicates that he has substantially observed all of the rules and regulations of the institution or facility in which he has been confined and has faithfully performed the duties assigned to him. [ ee id. at ¶3; DOC Time Comp Manual, at 2-3, Exh. 3 to S Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 17. For offenders whose crimes occurred after July 1, 1985, good time credits

impact an offender's parole eligibility date. [See Carlson Declaration, ¶3, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. The criteria for the award of good time is found in the DOC's Time Comp Manual. [ ee Carlson Declaration, ¶4, Exh. A-1 to S Defendants' Jurisdictional Brief, Doc.65; DOC Time Comp Manual, at 10-13, Exh. 3 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 18. Earned time is awarded to offenders incarcerated by the DOC based on

an assessment of an offender's progress in areas such as work and training, group living, participation in counseling and self-help programs, progress toward the goals established by the Colorado Diagnostic Program, and not harassing or contacting any victim of the offender's criminal activity. Defendants' Jurisdictional Brief, Doc.65]. [ ee Carlson Declaration, ¶4, Exh. A-1 to S

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19.

Unlike good time, earned time impacts the sentence discharge date for the

offender. For each day of earned time awarded the offender during his incarceration by the DOC, the offender's sentence discharge date is advanced by one day up to a maximum reduction of twenty-five percent (25%) of the offender's total sentence. [See Carlson Declaration, ¶5, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65; DOC Time Comp Manual, at 13, Exh. 3 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 20. The DOC has developed criteria for the award of earned time for both

offenders and parolees. The Time Comp Manual describes the assessment criteria for earned time awards as follows: Assessment Criteria for Earned Time: Case Managers shall assess the progress of their clients and determine from the record or direct contact with appropriate staff, if their client has made substantial and consistent progress in the following categories: 1. Work and Training: Including attendance, promptness, performance, cooperation, care of materials and safety. Group Living: Including housekeeping, personal hygiene, cooperation, social adjustment and double bunking (if applicable). Participation in counseling sessions and involvement in self-help groups. For any inmates who have been paroled, compliance with the conditions of parole release. The offender has not harassed the victim either verbally or in writing. The inmate has made positive progress, in accordance with performance standards establishes by the Department, in the Literacy Corrections Program or the Correctional Education Program.

2.

3. 4.

5. 6.

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[See DOC Time Comp Manual, at 10, Exh. 3 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. 21. Case Managers for each offender or parole award earned time on a

monthly basis based on the following basis: Progress Categories Maximum Earnable For: Inmates Work and training, including attendance, promptness, performance, cooperation, care of materials and safety Parolees

2 days

N/A

Group living, including housekeeping, personal hygiene, cooperation, social adjustment, and double bunking (if applicable) 2 days Participation in counseling sessions and involvement in self-help groups Progress toward goals and programs established by the Colorado Diagnostic Program For any inmates who have been paroled, compliance with the conditions of parole release The offender has not harassed the victim either verbally or in writing The inmate has made positive progress progress in accordance with performance standards established by the Department in the Literacy Corrections Program or the Correctional Education Program

N/A

2 days

N/A

3 days

N/A

N/A

8 days

1 day

2 days

4 days

N/A

[See DOC Time Comp Manual, at 11, Exh. 3 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65].

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22.

Additionally, the DOC provides limiting criteria making offenders who have

been convicted of violations of the COPD ineligible to receive any earned time as follows: Limiting Criteria: 1. Offenders who have been convicted of a Class I rule infraction shall not be considered for earned time for the month of conviction and the following two (2) months. Offenders who have been convicted of a Class II rule infraction shall not be considered for earned time for the month of conviction and the following one (1) month. Offenders who have been convicted of a Class III rule infraction shall not be considered for earned time for the month of conviction. Offenders who have not been convicted of any rule infraction, pursuant to subsections 1-3 and who are not in Administrative Segregation may be considered for 0-5 meritorious good time or 0-15 days of earned time (whichever is applicable) based on the monthly performance reports from their work/training supervisors, group living supervisors and program supervisors.

2.

3.

4.

[See DOC Time Comp Manual, at 10-11, Exh. 3 to Carlson Declaration, Exh. A-1 to Defendants' Jurisdictional Brief, Doc.65]. IV. ARGUMENT Plaintiff Leonard Baldauf's 42 U.S.C. § 1983 claims are barred by Heck and its progeny because they represent an improper collateral attack on Plaintiff's conviction for violating the COPD. Plaintiff's April 21, 1999, and July 29, 1999, COPD convictions resulted, under DOC policy, in his inability to be eligible to obtain earned time for May, June, July, August and September 1999. Contrary to the Recommendation, under Colorado law, an offender's receipt of earned time reduces the sentence the offender

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will ultimately have to serve. The impact of Plaintiff's COPD convictions under Colorado law therefore directly impacts the length of his sentence of incarceration. As a result, under Heck and its progeny, Plaintiff's 42 U.S.C. § 1983 claim is barred and this Court lacks jurisdiction to consider his claims as a matter of law. A. The Development of the Heck v. Humphrey Doctrine The United States Supreme Court first addressed the relationship between 42 U.S.C. §1983 and habeas corpus in Prieser v. Rodriguez, 411 U.S. 475 (1973). There, the Supreme Court addressed whether a prisoner could challenge the constitutionality of a prison disciplinary action that resulted in a sanction of loss of the prisoner's good time credits pursuant to 42 U.S.C. §1983. In Prieser, three prisoners brought §1983 claims challenging the constitutionality of disciplinary proceedings resulting in a loss of good time credits. See id. at 476-77. The prisoners sought injunctive relief for restoration of their good time credits, which in each of their situations would have resulted in their immediate release from confinement. See id. In Prieser, the Supreme Court addressed the extent to which the prisoners' §1983 claims could permissibly overlap with the habeas corpus statutes, 28 U.S.C. §§2241 and 2254. See id. at 482-83. The Court observed, "the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and . . . the traditional function of the writ is to secure release from illegal custody. Id. at 484. A prerequisite to applying for habeas corpus is exhaustion of all state remedies available in the administrative or court systems. See id. at 483; see also 28 U.S.C. §2254. The Court held that "when a state prisoner is challenging the very fact or duration of his

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physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500. As such, the Supreme Court concluded the prisoners' §1983 claims were not cognizable. The Supreme Court next addressed the intersection between habeas corpus relief and 42 U.S.C. §1983 actions in Heck . In Heck, the Court extended Prieser to include claims that indirectly implicated the fact or duration of confinement. In that case, a prisoner brought a §1983 claim alleging his criminal conviction was improperly obtained. The prisoner sought monetary damages and did not seek immediate or speedier release from his confinement. See Heck, 512 U.S. at 481. Nonetheless, the Court found that establishing the prisoner's damages claim would necessarily demonstrate the invalidity of his conviction so that the prisoner "can be said to be `attacking . . . the fact or length of confinement,' bringing the suit within the other dictum of Prieser: `Congress has determined that habeas corpus is the appropriate remedy for state prisoners attacking the validity of the fact or length of their confinement, and that specific determination must override the general terms of §1983.'" Id. at 482 (quoting Prieser, 411 U.S. at 490). Further, the Court looked to the common law tort of malicious prosecution as an analogy, finding a malicious prosecution tort required proof that the conviction was terminated in favor of the accused. See id. at 384. Similar to the common law tort of malicious prosecution, the Court held that a §1983 claim challenging the constitutionality of a conviction or sentence could not be brought until the conviction is

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invalidated, which has become known as the "favorable termination" requirement. See generally Beck v. Muskogee Police Dept., 195 F.3d 553, 556-57 (10th Cir. 1999). Specifically, the Court in Heck held: in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. §2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487 (emphasis in original). The Court's rationale behind this holding was that requiring a plaintiff prisoner to establish as a threshold requirement the challenged conviction or sentence was terminated in his favor would prevent convicted criminals from utilizing §1983 as a vehicle for launching collateral attacks on their convictions. Subsequently, the Supreme Court had the opportunity to evaluate the applicability of Prieser and Heck to §1983 claims implying the invalidity of prison disciplinary convictions in Edwards v. Balislok, 520 U.S. 641 (1997). In Edwards, a prisoner claimed he was denied an opportunity to present a defense in a prison disciplinary hearing and that the hearing officer who heard the disciplinary case was biased, resulting in his conviction of a disciplinary violation a corresponding loss of good time credits. See id. at 646-47. The prisoner brought a §1983 claim alleging a due 14

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process violation and seeking monetary damages, a declaratory judgment that the procedures violated due process, and injunctive relief. See id. at 644. The Court found the nature of the prisoner's challenge was such as to imply the invalidity of the disciplinary conviction and the deprivation of the prisoner's good time credits. See id. at 646. As a result, as in Heck, the Court held the prisoner stated no cognizable §1983 claim until the underlying disciplinary conviction was resolved in the prisoner's favor. See id. at 646-47. Most recently, in Muhammad v. Close, 540 U.S. 749 (2004), the Supreme Court addressed the issue of whether a prisoner challenging a prison disciplinary proceeding under §1983 must satisfy Heck's and Edwards' favorable termination requirement when the claim does no t impact the fact or duration of his confinement. In Muhammad, the plaintiff prisoner was found guilty of violating the prison's disciplinary rules, resulting in a disciplinary sanction of serving several days in detention and losing privileges for thirty days. See id. at 752-53. The plaintiff brought a 42 U.S.C. §1983 claim alleging a prison official filed the disciplinary charges against him in retaliation for the plaintiff's previously filing a lawsuit against the official. See id. at 753. Subsequently, the plaintiff amended his complaint by eliminating any request his disciplinary conviction be expunged and seeking only compensatory and punitive damages "for the physical, mental and emotional injuries sustained during the six days of prehearing detention mandated by the charge of threatening behavior attributable to [the official's] retaliatory motive." Id. at 753-54. The district court entered summary judgment in favor of the

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defendants, finding the plaintiff failed to allege sufficient facts to support his retaliation theory. See id. at 754. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the entry of summary judgment on a different ground. The Sixth Circuit did not reach the merits of the retaliation claim, but instead determined Heck and Edwards barred the plaintiff's action because the plaintiff sought expungement of the misconduct charge from his prison record without first demonstrating the charge was resolved in his favor. See id. The Supreme Court reversed the Sixth Circuit, finding that the court made a factual error by overlooking the plaintiff's amended complaint and incorrectly assuming the plaintiff sought to expunge his disciplinary conviction when the amended complaint sought no such relief. See id. In so doing, the Supreme Court analyzed the

applicability of Heck and Edwards to the factual situation at issue in Muhammad. Initially, the Court recognized the difficulty in applying Heck to cases that are "hybrids [of habeas and §1983 actions], with a prisoner seeking relief unavailable in habeas, notably damages, but on allegations that not only support a claim of recompense, but imply the invalidity either of an underlying conviction or of a particular ground for denying release short of serving the maximum term of confinement." Muhammad, 540 U.S. at 750-51. With such hybrid claims, the Court rejected the notion that Heck applies "categorically to all suits challenging prison disciplinary proceedings." Instead, the Court found that prison disciplinary proceedings do not as such raise any implication about the validity of the underlying conviction, and although they may effect the duration of time to be served 16 Id. at 754.

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(by bearing on the award or revocation of good-time credits) that is not necessarily so. The effect of disciplinary proceedings on good-time credits is a matter of state law or regulation, and in this case, the Magistrate expressly found or assumed that no good-time credits were eliminated by the prehearing action Muhammad called in question. His § 1983 suit challenging this action could not therefore be construed as seeking a judgment at odds with his conviction or with the State's calculation of time to be served in accordance with the underlying sentence. That is, he raised no claim on which habeas relief could have been granted on any recognized theory, with the consequence that Heck's favorable termination requirement was inapplicable. Id. at 754-55.3 The Supreme Court's decision in Muhammad clarifies that the favorable termination requirement applies to 42 U.S.C. §1983 claims challenging prison disciplinary convictions only when resolving the claims would implicate the duration of the prisoner's confinement. In other words, if the resolution of the §1983 claim would implicate the reversal of a prison disciplinary conviction that resulted in the loss of good time to the prisoner and thereby impacted the length of the prisoner's confinement, then Heck and Edwards bar the prisoner from collaterally challenging his prison disciplinary conviction pursuant to §1983. B. The Impact of Good Time and Earned Time Credits on the Duration of a Colorado Prisoner's Confinement A complete understanding of the implications of the Plaintiff's 42 U.S.C. §1983 claim on the duration of his confinement requires a review of Colorado's complex

Although the defendant prison official in Muhammad attempted to argue to the Supreme Court that Heck applied because if the plaintiff's claim succeeded, he would be entitled to the restoration of his good time credits with the result of less time spent in prison, the Court refused to consider this argument because the defendant did not raise the argument before either the district court or the Sixth Circuit. Id. at 755. As such, the argument was waived by the defendant. Id. 17

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statutory and regulatory scheme for computing the time of offenders' sentences. In Colorado, there are two types of credits awarded to offenders--good time and earned time. Both types of credits are implicated in the instant case. Colorado provides good time credits to offenders "whose conduct indicates that he has substantially observed all of the rules and regulations of the institution or facility in which he has been confined and has faithfully performed the duties assigned to him." C.R.S. §17-22.5-403. The impact of good time credits on an offender's sentence varies according to the date on which the offender's crime was committed. For example, for offenders sentenced for crimes committed on or after July 1, 1979, but before July 1, 1981, good time credits vest quarterly and may not be withdrawn once vested. See C.R.S. § 17-22.5-301(1). For such offenders, good time credits do not shorten the duration of their sentence but do move up the parole eligibility date in mandatory fashion. For offenders sentenced for crimes committed on or after July 1, 1985,

however, good time credits do not vest and may be withheld or deduced by the DOC. See C.R.S. § 17-22.5 -403. [¶¶ 16-17]. 4 For such offenders, good time credits have a less direct impact on the prisoner's parole eligibility date because the DOC has the discretion to determine the inmate's parole eligibility. See, e.g., Rennecke v. Kautzky, 782 P.2d 343, 344-46 (Colo. 1989). Thus, depending on the date of an inmate's

offense, good time credits provide varying degrees of certainty as to the date an inmate is eligible for release from custody on parole.

For ease of reference, whenever possible, citations to factual references are made to the paragraph numbers contained in the above Statement of Undisputed Facts. 18

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The other type of credit applied to Colorado prisoners' sentences is earned time credit. Earned time is awarded to offenders who demonstrate to the DOC's satisfaction substantial and consistent progress in categories such as work and training, group living, participation in counseling and group sessions, education programs, and progress toward the goals and programs established by the DOC's diagnostic programs. See C.R.S. § 17-22.5-405. Unlike good time, earned time operates to reduce the term for which an inmate is sentenced--i.e. the inmate's sentence discharge date. [¶¶ 18-19]. The statutory provisions concerning earned time demonstrate that earned time credits accelerate the sentence discharge date rather than the parole eligibility date alone. For example, in C.R.S. §17-22.5-405, the Colorado General Assembly provided that both incarcerated offenders and parolees could be awarded earned time. See C.R.S. §17-22.5-405(1) ("Earned time, not to exceed ten days for each month of incarceration or parole , may be deducted from an inmate's sentence . . .") (emphasis added); C.R.S. § 17-22.5-405(3) ("For each inmate . . . , or for each parolee, the department shall review the performance of the inmate or parolee and may grant, withhold, withdraw, or restore . . . an earned time deduction from the sentence imposed. Such review shall be conducted . . . semiannually while such person is on parole and shall vest upon being granted." (emphases added)). The award of earned time credits to inmates who are already on parole demonstrates earned time may impact the sentence discharge date of the offender rather than simply advance the parole eligibility date. Otherwise, the statutory language addressing earned time for parolees would be

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superfluous and meaningless, fundamentally inconsistent with Colorado's rules of statutory interpretation.5 Further statutory support that earned time impacts the duration of the sentence of an offender is found at C.R.S. §17-22.5-405(4), which states: "[E]arned time may not reduce the sentence of any inmate . . . by a period of time which is more than twentyfive percent of the sentence." C.R.S. §17-22.5-405(4). This statutory language

discussing a maximum reduction of an offender's sentence again demonstrates that earned time was intended to potentially reduce the actual sentence served by a particular offender. If the state legislature intended that earned time would only reduce the parole eligibility date for offenders than these statutory provisions make absolutely no sense whatsoever. Finally, the DOC deducts earned time credits from an inmate's sentence discharge date. The DOC has interpreted the statutory provisions governing earned time as providing that earned time reduces an offender's sentence discharge date by one day up to a maximum reduction of twenty-five (25%) of the offender's total sentence. [¶ 19]. This Court must defer to the interpretation and actual application of the Colorado statutes regarding earned time and good time by the DOC as the agency charged with implementing those statutes. See Chevron U.S.A., Inc. v. Natural

See, e.g., Board of County Commissioners, Costilla County v. Costilla County Conservancy Dist., 88 P.3d 1188, 1192-93 (Colo. 2004) (explaining the applicable statutory interpretation principles for interpreting Colorado statutes); Farmers Ins. Exchange v. Bill Boom, Inc., 961 P.2d 465, 470 (Colo. 1998) (same); Mountain City Meat Co. v. Oqueda, 919 P.2d 246, 253 (Colo. 1996) (same); People v. Rapini, 112 P.2d 551, 552 (Colo. 1941) (same). 20

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Resources Defense Council, Inc., 467 U.S. 837, 843-45 (1994); United States v. Atandi, 376 F.3d 1186, 1189 (10th Cir. 2004). Indeed, the United States Court of Appeals for the Eighth Circuit has deferred to the interpretation of a state department of corrections concerning the appropriate construction of the applicable statutes and regulations. See Jennings v. Lombardi, 70 F.3d 994, 997 (8th Cir. 1995). D. Application of Heck v. Humphrey and Its Progeny To Plaintiff Plaintiff's 42 U.S.C. §1983 claims against the Defendants are barred by Heck and its progeny. Plaintiff's Complaint alleges he was retaliated against by the

Defendants for seeking judicial review of his April 21, 1999, COPD conviction by his July 29, 1999, COPD conviction and his subsequent placement in punitive segregation. [See Plaintiff's Complaint, 7/11/01 (Doc. 3)]. Pursuant to Prieser, Heck, Edwards and Muhammad, a prisoner's 42 U.S.C. §1983 claim is precluded if it challenges a prison disciplinary conviction when the prison disciplinary conviction resulted in a sanction to the prisoner that impacted the fact or duration of the prisoner's confinement. Muhammad, 540 U.S. at 750-755. Here, Plaintiff's 42 U.S.C. §1983 claim directly implicates the validity of his July 29, 1999, COPD conviction. As a direct result of Plaintiff's July 29, 1999, COPD

conviction he was ineligible for and did not receive any award of earned time for the months of August and September 1999. [¶¶ 10 & 22]. Under Colorado law as

interpreted by the DOC, an award of earned time serves to reduce the sentence of an offender by reducing the length of the sentence, up to a maximum of twenty-five (25%), by one day for each day of earned time awarded to the offender. 21 [¶ 19]. In

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combination, the impact of Plaintiff's July 29, 1999, COPD conviction on his ability to receive any award of earned time for the next several months and the impact under Colorado law of earned time on the overall length of sentence means that the instant case falls within the purview of Muhammad. Here, Plaintiff's July 29, 1999, COPD conviction resulted in his being ineligible to receive any earned time which in turn resulted in the inability to have the length of his sentence and therefore the length of his incarceration reduced. Because Plaintiff's 42 U.S.C. §1983 claims implicate the validity of his July 29, 1999, COPD conviction--based on Plaintiff's argument that his conviction resulted from retaliatory behavior by the Defendants in violation of his First Amendment rights--pursuant to Prieser, Heck, Edwards and Muhammad, this Court lacks jurisdiction to consider Plaintiff's §1983 claims requiring their dismissal as a matter of law. E. Magistrate's Recommendation The Recommendation rejected Defendants' argument for the applicability of Heck to Plaintiff's Complaint on the basis of two arguments presented by Plaintiff. First, Plaintiff argued that due to the length of his sentence, and the fact that earned time is capped at 25% of the duration of an inmate's sentence, he could still obtain all of the earned time available to him, and the withholding of earned time due to the disciplinary convictions therefore may not affect the duration of his sentence. The

Recommendation adopted Plaintiff's reasoning, finding that Plaintiff's mandatory release date would not change even if his earned time credits were restored, and therefore the

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success of the action would not necessarily mean a speedier release from prison. [See Recommendation, at p.10-11]. However, the reasoning of the Recommendation ignores the statutory and regulatory scheme for calculation of sentences for DOC prisoners described above, under which the awarding of earned time does in fact change a prisoner's mandatory release date by reducing the sentence by up to 25% of its total length. Further,

Plaintiff's assertion that he can still accumulate 25% of his sentence in earned time before his sentence expires is purely speculative. As explained above, earned time is awarded only to prisoners who demonstrate substantial and consistent progress in categories such as work and training, group living, participation in counseling and group sessions, progress toward the goals and programs established by the Colorado Diagnostic Program, and not harassing or contacting any victim of the offender's criminal activity. [See Defendants' Jurisdictional Brief, Doc.65, at p.7-8, 17, Exh.A -1]. In addition, earned time is not available for specified periods after an inmate is convicted of a disciplinary violation or while an inmate is in administrative segregation. [See id. at p.9-10]. Plaintiff cannot be certain that he will satisfy the earned time criteria in any given month between now and his release date, and certainly cannot assume that he will accumulate the full 25% of his sentence even without the earned time he missed due to the disciplinary conviction at issue here. Plaintiff also cannot assume that he will not be convicted of any additional disciplinary violations and will not be placed in administrative segregation in the remaining period of his sentence.

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Under Plaintiff's theory, the application of Heck would be based solely upon speculation as to whether or not an inmate will or will not be able to accumulate enough earned time to eliminate the impact of the loss of earned time from any particular disciplinary conviction. The application of a jurisdictional rule created by the United States Supreme Court should not be based upon such speculation, and the Courts should not be put in the position of having to determine whether earned time affects the length of a prisoner's sentence on a case-by-case basis. In addition, under Plaintiff's theory, the longer a prisoner's sentence is, the more likely it is he or she will be able to accumulate all legally available earned time in spite of a disciplinary conviction. This would create an anomalous situation where inmates convicted of the worst crimes or the greatest number of crimes will be given the most access to the federal courts for purposes of civil rights claims, and inmates with the shortest sentences will most often be barred from bringing such action without first bringing a habeas corpus action. The Magistrate Judge's Recommendation ignores this important anomaly by adopting the Plaintiff's argument. Second, Plaintiff relied on Meyers v. Price, 842 P.2d 229, 231-32 (Colo. 1992), in which the Colorado Supreme Court interpreted C.R.S. §17-22.5 -402 to mean that earned time impacts only a prisoner's parole eligibility date. Relying on Meyers, the Recommendation finds the deprivation of Plaintiff's earned time credits does not necessarily effect the duration of his confinement. [ ee Recommendation, at p.11]. S

However, Meyers relied on three prior Colorado Supreme Court decisions, each of which interpreted the version of the sentencing statutes in effect for crimes committed

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prior to 1985, and each of which dealt with an inmate who had been released on parole but later returned to prison after their parole was revoked. See Meyers, 842 P.2d at 230 (citing Bynum v. Kautzky, 784 P.2d 735 (Colo. 1989), Williamson v. Jordan, 797 P.2d 744 (Colo. 1990), Jones v. Martinez, 799 P.2d 385 (Colo. 1990)). While Meyers itself involved a crime committed after 1985, the question addressed was whether the DOC was required to release the plaintiff from prison due to the accumulation of good time and earned time, and as a result it was not necessary to the decision to determine whether earned time alone can reduce an inmate's sentence so as to support a habeas corpus petition. As a result, the Colorado Supreme Court's discussion in Meyers about earned time can legitimately be considered dicta. Moreover, Meyers itself recognizes that the impact of earned time also deals with an inmate's sentence discharge date. In Meyers, the Colorado Supreme Court, in interpreting C.R.S. § 17-22.5-405 and C.R.S. § 17-22.5-406, recognizes that earned time impacts the sentence discharge date for inmate incarcerated by the DOC. See Meyers, 842 P.2d at 231-232. The statutory scheme provides that the DOC reviews the performance of each inmate "and may grant, withhold, withdraw, or restore, consistent with the provisions of this section, an earned time deduction from the sentence imposed." C.R.S. § 17-22.5-405(3). Further, the statutory scheme provides that application of the earned time provisions may "result in the early discharge of any offender" based on the DOC referring that offender to the parole board for the decision to grant an early discharge. This is separate from, and subsequent to, the DOC's

referral to the Board for a decision as to whether to parole. In other words, the parole

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eligibility date occurs upon completion of approximately 50% of the sentence, while the early discharge decision occurs upon service of approximately 75% of the sentence. See C.R.S. § 17-22.5-406(1)(c). The Colorado Supreme Court's entire discussion in Meyers concerning earned time demonstrates that it differs fundamentally from good time in that earned time impacts an inmate's sentence discharge date. Additionally, the Recommendation ignores the statutory provisions that provide that both offenders and parolees may be awarded earned time. See, e.g., C.R.S. § 1722.5-405(1) ("Earned time, not to exceed ten days for each month of incarceration or parole, may be deducted from an inmate's sentence . . .") (emphasis added); C.R.S. § 17-22.5-405(3) ("For each inmate . . . , or for each parolee, the department shall review the performance of the inmate or parolee and may grant, withhold, withdraw, or restore . . . an earned time deduction from the sentence imposed. Suc h review shall be

conducted . . . semiannually while such person is on parole and shall vest upon being granted.") (emphases added). The Recommendation ignores the implication of these statutory provisions. If earned time only impacts the parole eligibility date of inmates, it makes no sense whatsoever for the Colorado General Assembly to have provided for parolees to also receive earned time. Acceleration of a date that has already come and gone would serve no purpose. Under Colorado law, statutes should not be interpreted to achieve an absurd result. City of Ouray v. Olin, 761 P.2d 784, 788 (Colo. 1988); Huff v. Tipton, 810 P.2d 236, 238 (Colo. 1991). A statute must be construed to avoid an "illogical result." In Re Estate of Hall, 936 P.2d 592, 595 (Colo. App. 1996).

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Additionally, as noted above, Colorado law provides that all provisions of a statutory scheme must be considered together in conducting statutory interpretation. Courts must give effect to "each and every" word in a statute, unless to do so would cause an absurd result. Dikeou v. Dikeou, 928 P.2d 1286, 1294 (Colo. 1996). The Recommendation did not do so in this case. Furthermore, the existence of these

contrary statutory provisions and the ambiguity of the statutory scheme in its entirety demonstrates the reasonableness of this Court deferring to the DOC's interpretation of the statutory scheme under Chevron and its progeny. The Recommendation did not appropriately analyze this issue in this case either. Finally, to Defendants' knowledge, the Colorado Supreme Court has never been presented with the information submitted to this Court in Defendants' Jurisdictional Brief, clearly demonstrating that good time and earned time are distinguishable and intended by the legislature to be applied in different manners for purposes of sentencing. [See Defendants' Jurisdictional Brief, Doc.65, at p.7-8, 16-19, Exh.A-1]. In addition, the Colorado Supreme Court has not ever considered the DOC's interpretation and application of the current sente ncing scheme, which is laid out in detail in the Defendants' Jurisdictional Brief and attached exhibits, and which demonstrates that the state agency charged with the administration of the sentencing statutes in fact applies earned time credits to reduce the inmate's sentence, rather that to the parole eligibility date. [See id.]. Moreover, while C.R.S. § 17-22.5-405(3) is cited in Meyers, the

Colorado Supreme Court has also not addressed the impact of the statutory scheme's award of earned time to parolees and how that salient fact might alter the applicable

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analysis.

Provided with this information and according proper deference to the

interpretation of the DOC under Chevron, Defendants believe the Colorado Supreme Court would acknowledge that earned time does, in fact, reduce an inmate's sentence under the statutes applicable to Plaintiff's sentence. As a result, the Heck doctrine is applicable and Plaintiff cannot pursue his 42 U.S.C. §1983 claim without proof he has successfully challenged his disciplinary conviction. IV. CONCLUSION In conclusion, for all of the foregoing reasons, Defendants John Hyatt, Robert Fahey, Gary Neet, Gloria Masterson, Charles Tappe, Richard Martinez, Betty Fulton, David Roberts, Paul Carreras, William Zalman, Connie Davis, Patricia Romero, Ken Maestas, Joseph Garcia, Gary Carr, David Archuleta, Nard Claar, and Richard Harlan respectfully request this Court dismiss the Plaintiff's claims against them, and for all other and further relief as this Court deems just and appropriate.

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Dated this 13th day of January, 2006. Respectfully submitted,

s/Andrew D. Ringel Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 [email protected] [email protected] 303-628-3300 ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 13th day of January, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, and hereby certify that I have mailed or served the document or paper to the following non-CM/ECF participant in the manner (mail, hand delivery, etc.) indicated by the non-participant's name: Leonard Baldauf, #98415 (via U.S. Mail) Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, CO 81034

s/Loree Trout, Secretary Andrew D. Ringel, Esq. Gillian Dale, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, Colorado 80202-2052 303-628-3300 Fax: 303-293-3238 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS JOHN HYATT, ROBERT FAHEY, GARY NEET, GLORIA MASTERSON, CHARLES TAPPE, RICHARD MARTINEZ, BETTY FULTON, DAVID ROBERTS, PAUL CARRERAS, WILLIAM ZALMAN, CONNIE DAVIS, PATRICIA ROMERO, KEN MAESTAS, JOSEPH GARCIA, GARY CARR, DAVID ARCHLETA, NARD CLAAR, AND RICHARD HARLAN

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