Free Brief - 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' JURISDICTIONAL BRIEF

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., pursuant to this Court's Order of August 10, 2005, hereby submit their Jurisdictional Brief, as follows: 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 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

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served with the Plaintiff's Complaint, filed a Motion to Dismiss.

[See Doc. 19].1

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 December 24, 2001, Plaintiff responded to the Defendants' Motion to Dismiss by filing a Response as well as a Motion to Amend his Complaint. [See Doc. 24 & 25]. Defendants submitted their Reply Brief in support of their Motion to Dismiss on January 3, 2002. [See Doc. 30]. On March 3, 2003, United States M agistrate 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 concluded Heck precluded the Plaintiff's claims. Plaintiff filed an Objection to the Magistrate Judge's Recommendation on March 17, 2003. [ ee Doc. 31]. On March 25, 2003, this Court accepted the Magistrate S

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

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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part, states as follows: 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. Bauldauf'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 now respectfully submit their jurisdictional brief. STANDARD OF REVIEW 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). 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 3

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1221, 1225 (10th Cir. 2001); Raccoon Recovery, LLC v. Navoi Mining & 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. Stuart, 271 F.3d at 1225. STATEMENT OF UNDISPUTED FACTS 1. Plaintiff Leonard Bauldauf began his incarceration in the Colorado

Department of Corrections on September 11, 1998, for a twenty-four year sentence. [See Bauldauf Official Time Computation Report, Exh. 1 to Declaration of Mary Carlson, Exh. A-1]. 2. Mr. Bauldauf 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. Bauldauf was charged with a violation of the COPD [ ee Notice of Charges, Case No. 991061, 4/11/99, Exh. A-2; S

for refusal to work.

Disciplinary Query Printout, Exh. 2 to Carlson Declaration, Exh. A-1].

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4.

A COPD hearing was held on April 21, 1999, and Mr. Bauldauf 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]. 5. As a result of his COPD conviction, Mr. Bauldauf received ten days in

punitive segregation, probated for 90 days unless Mr. Bauldauf received another Class I or Class II conviction under the COPD during that period of time. [See Disposition of Charges, Case No. 991061, 4/21/99, Exh. A-3]. 6. On July 20, 1999, Mr. Bauldauf was charged with unauthorized

possession of another inmate's legal papers in violation of the COPD. [See Notice of Charges, Case No. 000067, 7/20/99, Exh. A-4]. 7. A hearing was held on July 29, 1999, and Mr. Bauldauf was found guilty of

unauthorized possession in violation of the COPD. [See Disposition of Charges, Case No. 000067, 7/29/99, Exh. A-5]. 8. As a result of his COPD conviction, Mr. Bauldauf 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. Disposition of Charges, Case No. 000067, 7/29/99, Exh. A-5]. 9. In his Complaint, Mr. Bauldauf alleges he was retaliated against by the [See

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)].

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10.

Due to Mr. Bauldauf's COPD convictions of April 21, 1999, and July 29,

1999, Mr. Bauldauf did not receive any award of earned time for the months of May, June, July, August and September 1999. [ ee Carlson Declaration, ¶ 8, Exh. A-1; S

Bauldauf Official Time Computation Report, Exh. 1 to Carlson Declaration, Exh. A-1]. 11. Subsequently, Mr. Bauldauf was 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]. 12. Following Mr. Bauldauf's five COPD convictions at Fremont Correctional

Facility, Mr. Bauldauf 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; Classification Summary--Administrative Segregation Hearing, Case No. 99/00-014, 1/4/00, Exh. A-7; Administrative Segregation Hearing Review, Case No. 99/00-014, 1/19/00, Exh. A-8; Executive Assignment Order, 1/19/00, Exh. A-9]. 13. As a result of Mr. Bauldauf's placement in administrative segregation, Mr.

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

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15.

Colorado recognizes both good time and earned time for offenders. [See

Carlson Declaration, ¶¶ 2-4, Exh. A-1]. 16. Good time is provided to offenders incarcerated by the DOC 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. [See Carlson Declaration, ¶ 3, Exh. A-1; Department of

Corrections Time Comp Manual, at 2-3, Exh. 3 to Carlson Declaration, Exh. A-1]. 17. For offenders whose crimes occurred after July 1, 1985, good time credits

impact that offender's parole eligibility date. [See Carlson Declaration, ¶ 3, Exh. A-1]. 18. Earned time is awarded to offenders incarcerated by the DOC based on

an assessment of the offender's progress in areas such as work and training, group living, participating 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. The criteria for the award of good time is found in the DOC's Time Comp Manual. [See Carlson Declaration, ¶ 4, Exh. A-1; DOC Time Comp Manual, at 10-13, Exh. 3 to Carlson Declaration, Exh. A-1]. 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 reduced 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; DOC Time Comp Manual, at 13, Exh. 3 to Carlson Declaration, Exh. A-1].

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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.

[See DOC Time Comp Manual, at 10, Exh. 3 to Carlson Declaration, Exh. A-1]. 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

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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]. 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. 9

2.

3.

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4.

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.

[See DOC Time Comp Manual, at 10-11, Exh. 3 to Carlson Declaration, Exh. A-1]. ARGUMENT I. PLAINTIFF'S 42 U.S.C. § 1983 CLAIMS ARE BARRED BY THE HECK V. HUMPHREY DOCTRINE Plaintiff Leonard Bauldauf's 42 U.S.C. § 1983 claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994), and its progeny because they represent an improper collateral attack on Mr. Bauldauf's conviction for violating the Code of Penal Discipline. Plaintiff's April 21, 1999, and July 29, 1999, COPD convictions resulted under Colorado Department of Corrections policy in his inability to obtain earned time for May, June, July, August and September 1999. Under Colorado law, an offender's receipt of earned time reduces the sentence the offender will ultimately have to serve. The impact of Mr. Bauldauf's COPD convictions under Colorado law therefore directly impacts the length of his sentence of incarceration. As a result, under Heck and its progeny, Mr.

Bauldauf'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 10

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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. 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. 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. 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. 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 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 therefore not cognizable. The Supreme Court next addressed the intersection between habeas corpus relief and 42 U.S.C. § 1983 actions in Heck v. Humphrey, 512 U.S. 477 (1994). 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

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criminal conviction was improperly obtained. The prisoner sought monetary damages and did not seek immediate or speedier release from his confinement. Heck, 512 U.S. at 481. Nonetheless, however, 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. 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 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 12

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complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Heck, 512 U.S. 487 (footnotes omitted). The Court's rationale behind this holding was requiring a plaintiff prisoner to establish as a threshold requirement the challenged conviction or sentence was termination 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. Id. at 646-47. The prisoner brought a § 1983 claim alleging a due process violation and seeking monetary damages, a declaratory judgment that the procedures violated due process, a nd injunctive relief. 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. 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. 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 not impact the fact or duration of his confinement. In Muhammad, 13

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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. Muhammad, 540 U.S. 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. 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 defendants, finding the plaintiff failed to allege sufficient facts to support his retaliation theory. 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. 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. 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

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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." Id. at 754. 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 (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. 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.

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The Supreme Court's decision in Muhammad clarifies that Heck's and Edwards' 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 plaintiff prisoner and thereby impacted the length of the prisoner's confinement than Heck and Edwards bar the prisoner for 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 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 shorten the duration of 16

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their sentence by moving 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. § 1722.5-403. [¶¶ 16-17].2 For such offenders, good time credits have a less direct impact on the prisoner's parole eligibility date and the DOC has the discretion to determine whether such an inmate should be paroled. 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. The other type of credit applied to Colorado prisoners' sentences is earned time credit. Earned time is awarded to offenders who demonstrate 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. § 17-22.5405. 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]. Defendants

recognize that in Myers v. Price, 842 P.2d 229, 231-32 (Colo. 1992), the Colorado Supreme Court interpreted C.R.S. § 17-22.5-402 to mean that earned time impacts only the parole eligibility date. However, the Colorado Supreme Court's analysis in Price fails to account for both the totality of the statutory provisions governing earned time

For ease of reference, whenever possible, citations to factual references are made to the paragraph numbers contained in the above Statement of Undisputed Facts. 17

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and the interpretation of the impact of earned time on the length of prisoners' sentences adopted by the DOC. The statutory provisions concerning earned time demonstrate that earned time credits reduce the sentence discharge date rather than the parole eligibility date. 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. § 17-22.5405(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 the parole eligibility date. Otherwise, the statutory language addressing earned time for parolees would be superfluous and meaningless, fundamentally inconsistent with Colorado's rules of statutory interpretation.3

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). 18

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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 sente nce 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

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).

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C. APPLICATION OF HECK V. HUMPHREY AND ITS PROGENY TO LEONARD BAULDAUF Plaintiff Leonard Bauldauf'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, Mr. Bauldauf's 42 U.S.C. § 1983 claim directly implicates the validity of his July 29, 1999, COPD conviction. As a direct result of Mr. Bauldauf'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]. Further, under Colorado law as interpreted by the Colorado Department of Corrections, 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. [¶ 19]. In combination, Mr. Bauldauf's July 29, 1999, COPD conviction's impact on his inability to receive any award of earned time for the next several months and the impact under Colorado law of earned time on Mr. Bauldauf's overall length of sentence means that the instant case falls within the purview of Muhammad. Here, Mr. Bauldauf's July 29, 1999, COPD conviction resulted in his not being awarded earned 20

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time which in turn resulted in the length of his sentence and therefore the length of his incarceration not being reduced. Because Mr. Bauldauf's 42 U.S.C. § 1983 claims implicate the validity of his July 29, 1999, COPD conviction--based on Mr. Bauldauf'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 Mr. Bauldauf's § 1983 claims requiring their dismissal as a matter of law.

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CONCLUSION In conc lusion, 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. Dated this 12th day of September, 2005 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 12th day of September, 2005, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: None 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 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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