Walker v. White

FILED

United States Court of Appeals

UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT October 27, 2015

_________________________________

Elisabeth A. Shumaker

Clerk of Court

MARLON WALKER,

Plaintiff - Appellant,

v. No. 14-1380

(D.C. No. 1:13-CV-02142-RPM)

SUSAN WHITE, DOC Division of Adult (D. Colo.)

Parole, in her personal capacity for

damages; GUILLERMO SAMUDIO, DOC

Division of Adult Parole, in his personal

capacity for damages; DANA MADRID,

DOC Division of Adult Parole, in her

personal capacity for damages; BRIAN

STRUZESKI, DOC Division of Adult

Parole, in his personal capacity for

damages; ED THOMAS, Member of the

Parole Board, in his personal capacity for

damages; DENISE BALAZIC, Member of

the Parole Board, in her personal capacity

for damages; PATRICIA VAN WAAK,

Member of the Parole Board, in her

personal capacity for damages; JOHN

O'DELL, Member of the Parole Board, in

his personal capacity for damages;

MICHAEL ANDERSON, Member of the

Parole Board, in his personal capacity for

damages; REBECCA OAKES, Member of

the Parole Board, in her personal capacity

for damages; ANTHONY YOUNG,

Member of the Parole Board, in his

personal capacity; BRANDON SHAFFER,

Member of the Parole Board, in his

personal capacity; ALFREDO PENA,

Member of the Parole Board, in his

personal capacity; JOE MARTIN

MORALES, Member of the Parole Board,

in his personal capacity; BECKY

LUCERO, Member of the Parole Board, in

her personal capacity for damages; JOHN

DOE, Arkansas Valley Correctional

Facility, in his personal capacity for

damages,

Defendants - Appellees.

_________________________________

ORDER AND JUDGMENT*

_________________________________

Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.

_________________________________

Marlon Walker, a former Colorado inmate and parolee, appeals from the

district court’s dismissal of his 42 U.S.C. § 1983 civil rights action against numerous

Colorado state parole officers and members of the Colorado Parole Board (the State

Defendants). The district court dismissed the complaint under Fed. R. Civ. P.

12(b)(6), ruling Walker failed to allege facts showing the State Defendants violated

any clearly established constitutional law and therefore failed to state a § 1983 claim.

We exercise jurisdiction under 28 U.S.C. § 1291, and affirm the dismissal, but on

different grounds because Walker’s claims are time barred.

I. Background

The following factual allegations are from Walker’s complaint. Walker was

charged in 2005 with second degree burglary, second degree assault, criminal attempt

*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. This order and judgment is not binding

precedent, except under the doctrines of law of the case, res judicata, and collateral

estoppel. It may be cited, however, for its persuasive value consistent with

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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to commit sexual assault and unlawful sexual contact, and he pleaded guilty to

second degree assault. He alleges that his plea agreement included the state’s

stipulation that there was no factual basis for a sex offense conviction. In February

2006, following an administrative review hearing, the Colorado Department of

Corrections (DOC) classified Walker as an S-4 sex offender, which applies to

inmates who were not convicted of a sex offense but for whom sex offender

treatment has been recommended. See Chambers v. Colo. Dep’t of Corrs., 205 F.3d

1237, 1240 n.8 (10th Cir. 2000) (describing the S-4 sex offender classification).

Colorado law then in effect gave the DOC complete discretion to classify inmates not

convicted of a sex offense as a sex offender notwithstanding any contrary prosecution

stipulation or court finding. Colo. Rev. Stat. § 16-22-103(1)(d) (2005); see also

Gwinn v. Awmiller, 354 F.3d 1211, 1218 (10th Cir. 2004) (holding that an inmate not

convicted of a sex offense may be classified by the DOC as a sex offender if it

affords him procedural protections).1 Walker was informed in 2007 that he was

required to undergo sex offender treatment in prison. The DOC concluded in 2009,

that Walker committed a disciplinary violation that further justified his sex offender

classification.

1

Walker makes many assertions on appeal that he was wrongfully classified as

a sex offender and that the DOC did not afford him the requisite due process in so

classifying him, even though he now claims he is not challenging the

constitutionality of the DOC’s determination to classify him as a sex offender. The

State Defendants dispute those allegations, and included in their motion to dismiss

the evidence of sexual misconduct that the DOC relied upon to classify Walker as a

sex offender. These disputes are not relevant to the disposition of this appeal,

however.

3

In January 2011, Walker was first released from prison on parole. He was

required as a condition of his parole to enroll in a sex offender treatment program

with a state contracted therapy provider, as part of which he was required to admit

and accept responsibility for sexual misconduct, including passing a polygraph

examination. In addition, he was required not to have contact with minors and to

participate in Alcoholics and Narcotics Anonymous.2 He was referred to a Denver

treatment program, Sexual Offense Resource Services, L.L.C. (SORS). On

August 10, 2011, SORS terminated Walker because he failed to accept responsibility

for sexual abuse and failed a SORS polygraph examination. He alleges he was

arrested for violating parole that day, and that his parole was ultimately revoked in

September 2011 based on his termination from the sex offender treatment program.

Walker was later released on parole, under the same terms and conditions as

his January 2011 terms and conditions of parole. He was referred to treatment with a

second treatment provider, Teaching Humane Existence Treatment Program, Inc.

(THE). In November 2011, THE terminated Walker from its program because he

refused to admit to and accept responsibility for sexual misconduct. The therapist at

THE concluded Walker had a “high risk to reoffend.” Aplt. App. at 22 (internal

quotation marks omitted). On December 19, 2011, his parole was again revoked

2

Although these were the terms and conditions of Walker’s parole, he was not

statutorily required to participate in sex offender treatment under Colorado’s Sex

Offender Lifetime Supervision Act because he was not convicted of a sex offense.

See Colo. Stat. § 16-11.7-105 (requiring persons convicted of sex offenses to undergo

appropriate sex offender treatment).

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because THE terminated him for his refusal to admit and accept responsibility for

sexual misconduct.

Walker filed his § 1983 complaint on August 11, 2013. He alleged that the

terms and conditions of his parole violated his First, Fifth and Fourteenth

Amendment rights. Id. at 27-28. He also claimed that the State Defendants violated

his constitutional rights by revoking his parole when he failed to comply with these

unconstitutional terms and conditions. Id. at 28.

The State Defendants moved for dismissal under Rule 12(b)(6) on the grounds

that Walker’s claims were barred by the two-year statute of limitations, as well as the

favorable termination requirement of Heck v. Humphrey, 512 U.S. 477 (1994); that

they were entitled to qualified immunity; and that Walker failed to allege the

requisite personal participation of the State Defendants. The district court dismissed

on the ground that the State Defendants were entitled to qualified immunity. See

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunity

protects government officials from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.” (internal quotation marks omitted)).

II. Discussion

“To state a claim under § 1983, a plaintiff must allege the violation of a right

secured by the Constitution and laws of the United States, and must show that the

alleged deprivation was committed by a person acting under color of state law.”

West v. Atkins, 487 U.S. 42, 48 (1988). We review de novo the district court’s

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dismissal of the State Defendants’ claim under Rule 12(b)(6). See Peterson v.

Grisham, 594 F.3d 723, 727 (10th Cir. 2010).

The State Defendants argued in their motion for dismissal, and now on appeal

that Walker’s claims against the State Defendants were barred by the two-year statute

of limitations. Walker argues his claims are not time-barred because he is only

challenging the State Defendants’ actions on and after August 2011 of revoking his

parole when he did not comply with the parole terms and conditions obligating him to

participate in sex offender therapy. Opening Br. at 10. He argues his § 1983 claims

accrued on December 19, 2011, when his parole was revoked for a second time. We

disagree with Walker, and conclude it is clear from the allegations in his complaint

that his claims are time-barred as a matter of law. See United States v. Sandoval,

29 F.3d 537, 542 n.6 (10th Cir. 1994) (holding we may affirm on alternative grounds

if “there is a record sufficient to permit conclusions of law”), and Aldrich v.

McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (holding a statute

of limitations question may be appropriately resolved under Rule 12(b)(6) when the

dates given in the complaint make clear that the claim is time-barred).

The statute of limitations for § 1983 actions brought in Colorado is two years

from the time the cause of action accrued. Fogle v. Pierson, 435 F.3d 1252, 1258

(10th Cir. 2006). While state law governs the applicable statute of limitations,

federal law determines when the claim accrues and when the limitations period starts

to run. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). “A § 1983

action accrues when facts that would support a cause of action are or should be

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apparent.” Fogle, 435 F.3d at 1258 (internal quotation marks omitted). “Since the

injury in a § 1983 case is the violation of a constitutional right, such claims accrue

when the plaintiff knows or should know that his or her constitutional rights have

been violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998)

(citations and internal quotation marks omitted). The claim accrues when the

constitutional injury occurs, “not when the consequence of that constitutional

injury . . . manifested itself.” Id.

It is clear from his complaint that Walker knew the exact terms and conditions

of parole on which his constitutional claims are based when he was paroled in

January 2011. He knew then that he was required to undergo sex offender treatment

with a state-contracted therapy provider, that he had to admit and accept

responsibility for his sexual misconduct, submit to polygraph examinations, and

avoid minors. Though he asserts he is only challenging the constitutionality of

revoking his parole on and after August 2011, his complaint makes clear revocation

was based solely on his failure to comply with these terms and conditions. The fact

that parole was revoked after his treatment providers terminated him because he

failed polygraph examinations and refused to admit and accept responsibility for his

sexual misconduct was merely a consequence of the stated terms of his parole. The

August 2011 decision to issue a revocation complaint, and the September and

December 2011 revocation decisions were not separate and distinct constitutional

injuries, but simply direct consequences of the January 2011 terms and conditions of

his parole. As in Smith, “the constitutional injury . . . which trigger[ed] the statute of

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limitations for purposes of § 1983, occurred when [the terms and conditions of

Walker’s parole were imposed], not when the consequence of that constitutional

injury . . . manifested itself.” 149 F.3d at 1154. Thus, we conclude that all of

Walker’s claims against the State Defendants are time-barred.

The judgment of the district court is affirmed.

Entered for the Court

Jerome A. Holmes

Circuit Judge

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