Petition for Writ of Certiorari — Delano Medina, Petitioner v. Jennifer Murphy, et al.

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

FILED

United States Court of Appeals

Tenth Circuit

July 3, 2024

>

Christopher M. Wolpert

Clerk of Court

DELANO MEDINA,

Plaintiff - Appellant,

No. 24-1029

(D.C. No. 1:23-CV-02241-LTB-SBP)

(D. Colo.)

v.

JENNIFER MURPHY; REBEKAH

RYAN; JR HALL,

Defendants - Appellees.

ORDER AND JUDGMENT*

Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges.

Delano Medina appeals the district court’s dismissal of his pro se complaint

filed under 42 U.S.C. § 1983 as frivolous or for failure to state a claim. Exercising

jurisdiction under 28 U.S.C. § 1291, we hold that Mr. Medina improperly brought his

* 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 This order and judgment is not binding precedent,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.

claim under § 1983 when it was cognizable only in a habeas corpus action. We

remand to the district court to vacate its judgment and dismiss without prejudice.

I. BACKGROUND

Mr. Medina is a prisoner in the custody of the Colorado Department of

Corrections (“CDOC”). His amended complaint against three Colorado state

officials asserted a procedural due process violation under § 1983. He alleged that

CDOC inaccurately computed his parole eligibility date (“PED”) and therefore

denied him timely consideration for parole. He further alleged that a Colorado

statute creates a presumption that parole would be granted in his case.

A magistrate judge dismissed Mr. Medina’s complaint as frivolous or for

failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(i) or (ii), holding that

Mr. Medina failed to plead deprivation of a due process liberty or property interest.

The magistrate judge said Mr. Medina had no liberty interest in a specific PED

because parole is discretionary under Colorado law. She also noted that, to the extent

Mr. Medina’s claim could be construed as seeking immediate or speedier release, it

must be brought in a habeas corpus action rather than under § 1983.

Mr. Medina objected to the magistrate judge’s Recommendation, contending

he had pled a due process liberty interest in an accurate PED and consideration for

parole. He argued that, although parole is discretionary in Colorado, consideration

for parole is not. He further contended that, with the correct PED, Colorado law

affords him both parole consideration and a statutory presumption of parole, and thus

the granting of parole in his case is not discretionary. Finally, Mr. Medina argued he

2

could sue under § 1983 because he was seeking declaratory and injunctive relief to

invalidate state procedures used to deny parole eligibility.

The district court summarily overruled Mr. Medina’s objections, accepted and

adopted the Recommendation, and entered judgment dismissing his complaint.

II. DISCUSSION

We generally review the dismissal of a complaint as frivolous under

§ 1915(e)(2)(B)(i) for an abuse of discretion. Milligan v. Archuleta, 659 F.3d 1294,

1296 (10th Cir. 2011). “However, where the frivolousness determination turns on an

issue of law, we review the determination de novo.” Id. (quotations omitted). We

review de novo the dismissal of a complaint for failure to state a claim under

§ 1915(e)(2)(B)(ii). Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). Because

Mr. Medina proceeds pro se, we construe his filings liberally but we do not act as his

advocate. See James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).

We need not decide whether Mr. Medina sufficiently pled a due process liberty

interest because we construe his complaint as seeking immediate or speedier release

from confinement. His claim is therefore cognizable only in a habeas corpus action,

as the district court alternatively held. i

1 We note, however, that this court has rejected in unpublished decisions Colorado

prisoners’ assertions of a protectible liberty interest in a correctly calculated PED. See

Fetzer v. Raemisch, 803 F. App’x 181, 185 (10th Cir. 2020) (unpublished) (“[Ajbsent an

overarching right to parole, the mere fact that the process used to determine a PED is

(allegedly) nondiscretionary is insufficient to create a liberty interest that the Due Process

clause protects.”); Baars v. Raemisch, 814 F. App’x 376, 377-78 (10th Cir. 2020)

(continued)

3

A state prisoner may challenge the conditions of his confinement in a § 1983

civil rights action. See Boutwell v. Keating, 399 F.3d 1203, 1209 (10th Cir. 2005).

A prisoner may challenge the execution of his sentence in a habeas corpus petition

under 28 U.S.C. § 2241. See Brace v. United States, 634 F.3d 1167, 1169 (10th Cir.

2011); Boutwell, 399 F.3d at 1210 n.2. A state prisoner’s “sole federal remedy is a

writ of habeas corpus” when he “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.” Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973); see McIntosh v. U.S. Parole Comm ’n, 115 F.3d

809, 812 (10th Cir. 1997).

Thus, courts must “ensure that state prisoners use only habeas corpus (or

similar state) remedies when they seek to invalidate the duration of their

confinement—either directly through an injunction compelling speedier release or

indirectly through a judicial determination that necessarily implies the unlawfulness

of the State’s custody.” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). A prisoner

may not bring a § 1983 claim that seeks “‘core’ habeas corpus relief, i.e., where a

state prisoner requests present or future release.” Id. He must instead seek habeas

relief after fully exhausting state remedies. See id. at 79 (“[Hjabeas corpus actions

require a petitioner fully to exhaust state remedies, which § 1983 does not.”).

(unpublished) (same). See 10th Cir. R. 32.1(A) (“Unpublished decisions are not

precedential, but may be cited for their persuasive value.”); see also Fed. R. App. P. 32.1.

4

In Duncan v. Gunter, 15 F.3d 989, 990 (10th Cir. 1994), for example, the

plaintiffs brought a § 1983 action claiming that they were wrongfully denied

earned-time credits that would have entitled them to release. Although the plaintiffs

did not seek an injunction explicitly ordering their release, we held their request “for

an injunction requiring the Colorado Attorney General to inform DOC of the changes

in the state law, and advise DOC to conform to the statutes which govern” could be

brought only in a habeas action because “the requested order would be tantamount to

a decision on the plaintiffs’ entitlement to a speedier release.” Id. at 991 (brackets

and quotations omitted).

In contrast, the Supreme Court held that the plaintiffs’ parole-related claims in

Wilkinson were cognizable under § 1983 because they “would not necessarily spell

immediate or speedier release.” 544 U.S. at 81. These plaintiffs sought to “render

invalid the state procedures used to deny parole eligibility . . . and parole suitability.”

Id. at 82. But success on their claims would mean, at most, either speedier

consideration for parole or a new parole hearing where release remained

discretionary. See id. Thus, these prisoners could pursue § 1983 claims because the

connection between the constitutionality of their parole proceedings and their release

from confinement was “too tenuous” for habeas to be their sole avenue of relief. Id.

at 78.

In this case, the connection between Mr. Medina’s constitutional claim

regarding calculation of his PED and his release from confinement is not so tenuous.

In his amended complaint, he sought a corrected PED and an order to schedule a

5

parole hearing. ROA at 53. Although he acknowledged that parole is discretionary

under Colorado law, id., he also alleged that a Colorado statute created a presumption

of parole in his case, id. at 56, 61. Based on this statutory presumption, his parole

will not be discretionary. See ROA at 81 (arguing in objections to Recommendation

that parole is not discretionary in his case due to the statutory presumption of parole);

Aplt. Br. at 10 (referencing “a statutory right to release from prison”); id. at 12

(arguing there is mandatory statutory language and an absence of parole discretion in

his case); id. at 14 (arguing he has “a legitimate expectation of parole”); id. at 16

(asserting that “defendants^ are now wrongfully detaining him”); id. at 17 (arguing

that, if his PED had been corrected, he “would have been paroled”).

Thus, according to Mr. Medina’s description of his claim, he attacks not only

“wrong procedures” but also “the wrong result”—the denial of parole. Wilkinson,

544 U.S. at 80 (quotations omitted). As in Duncan, granting his requested relief

“would be tantamount to a decision on [his] entitlement to a speedier release.”

15 F.3d at 991 (quotations omitted). As such, Mr. Medina must use habeas corpus

rather than § 1983, where, as here, he “seek[s] to invalidate the duration of [his]

confinement. . . indirectly through a judicial determination that necessarily implies

the unlawfulness of the State’s custody.” Wilkinson, 544 U.S. at 81. The district

court should have dismissed Mr. Medina’s complaint without prejudice rather than

reaching the merits. Cf. Boyce v. Ashcroft, 251 F.3d 911, 913, 918 (10th Cir.)

(affirming dismissal without prejudice of prisoner’s § 2241 petition challenging a

6

condition of confinement that could not be raised in a habeas petition), vacated as

moot, 268 F.3d 953 (10th Cir. 2001).

III. CONCLUSION

We remand to the district court to vacate its judgment and dismiss, without

prejudice, Mr. Medina’s complaint as incorrectly filed under § 1983. We grant

Mr. Medina’s motion to proceed on appeal without prepayment of costs and fees.

Entered for the Court

Scott M. Matheson, Jr.

Circuit Judge

7

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 1 of 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Susan Prose, United States Magistrate Judge

Civil Action No. 23-CV-02241-LTB-SBP

DELANO MEDINA,

Plaintiff,

v.

JENNIFER MURPHY,

REBEKAH RYAN, and

JR HALL,

Defendants.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This matter comes before the Court on the amended Prisoner Complaint (ECF

No. 7) filed pro se by Plaintiff Delano Medina. Because Mr. Medina proceeds pro se, the

Court liberally construes his filings, but will not act as an advocate. James v. Wadas,

724 F.3d 1312,1315 (10th Cir. 2013). The matter has been referred to this Court for

recommendation (ECF No. 9). 1

1 Be advised that all parties shall have fourteen (14) days after service hereof to serve and file any

written objections in order to obtain reconsideration by the District Judge to whom this case is assigned.

Fed. R. Civ. P. 72(b). The party filing objections must specifically identify those findings or

recommendations to which the objections are being made. The District Court need not consider frivolous,

conclusive or general objections. A party’s failure to file such written objections to proposed findings and

recommendations contained in this report may bar the party from a de novo determination by the District

Judge of the proposed findings and recommendations. United States v. Raddatz, 447 U.S. 667, 676-83

(1980); 28 U.S.C. § 636(b)(1). Additionally, the failure to file written objections to the proposed findings

and recommendations within fourteen (14) days after being served with a copy may bar the aggrieved

party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted

or adopted by the District Court. Thomas v. Am, 474 U.S. 140,155 (1985); Moore v. United States, 950

1

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 2 of 7

The Court has reviewed the filings to date, considered the entire case file,

analyzed the applicable law, and is advised in the premises. For the reasons that follow,

it is respectfully recommended that the amended Prisoner Complaint be dismissed.

I.

BACKGROUND

Mr. Medina is a convicted and sentenced state prisoner in the custody of the

Colorado Department of Corrections (“CDOC”). He is incarcerated at the Colorado

Territorial Correctional Facility in Canon City, Colorado. He brings this action under 42

U.S.C. § 1983 against several Colorado state officials, suing each in an individual and

official capacity. (ECF No. 7 at 1-3). The complaint presents a single procedural due

process claim under the Fourteenth Amendment. (Id. at 4). The claim is subtitled as

follows: “The CDOC’s failure to execute and accurately compute sentences under Colo.

Rev. Stat. § 17-22.5-101 is wrongfully denying Medina the correct parole eligibility date.

This denies parole consideration in violation of procedural due process; there also is a

deprivation of an adequate state judicial process to correct the problem.” (Id. at 4). In

essence, Mr. Medina claims that the erroneous calculation of his parole eligibility date

(“PED”) by the CDOC violates due process.

Specifically, Mr. Medina argues that his PED should be calculated by using a

sentence effective date (“SED”) of November 21, 2005, which corresponds to a 2005

prison sentence. (Id. at 4-7). On the 2005 sentence, Mr. Medina was released to a 1year term of parole on September 28, 2011, with the sentence being fully served and

F.2d 656, 659 (10th Cir. 1991).

2

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 3 of 7

discharged as of August 24, 2012. (Id.) see also ECF No. 7-1). The CDOC, however,

has not used the 2005 sentence in calculating Mr. Medina’s current PED because the

CDOC considers (incorrectly in Mr. Medina’s view) the 2005 sentence to have been fully

served and discharged as of August 2012. (ECF No. 7 at 4-7). Yet by Mr. Medina’s

account, the 2005 sentence was discharged prematurely because (1) the CDOC

paroled him too early by failing to apply a consecutive 18-month sentence from an

intervening 2010 case, and (2) the CDOC released him to serve a 1-year parole term

instead of a 3-year parole term. (Id. at 4-8). Had the CDOC applied the consecutive 18month sentence and the 3-year parole term, Mr. Medina would not have discharged

those previous sentences before being sentenced in his most recent cases. (Id.).

Because he should still have been serving the 2005 and 2010 sentences at the time of

his most recent sentencing, and because state law requires the CDOC to compute

multiple sentences under the “one continuous sentence” method, his PED should be

calculated by using the earliest SED, which is November 21, 2005. (Id.). To support his

argument, Mr. Medina cites numerous Colorado parole statutes. (Id.). He concludes that

these erroneous calculations under Colorado’s parole statutes, coupled with the

defendants’ failure to correct the erroneous calculations, amount to a violation of his

Fourteenth Amendment due process rights. (Id.).

In connection with these allegations, Mr. Medina requests multiple forms of

declaratory and injunctive relief:

•

“A declaration that the acts and omissions of defendant’s have violated

3

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 4 of 7

Medina’s rights, and stating defendant’s duties with respect to those rights;”

•

“A declaration that Medina is immediately eligible for a parole hearing under

Colo. Rev. Stat. § 17-22.5-403, with 50% of his sentence served;”

•

“An order directing Murphy to recalculate all of Medina’s state sentences

under the one-continuous-sentence statute-Colo. Rev. Stat. § 17-22.5-101-by

calculating the 18-month consecutive sentence in Boulder 10CR141, to be

followed by the three-year parole term in Douglas 05CR435, in accordance

with Colo. Rev. Stat.§ 18-1.3-401 (l)(a)(V)(E);”

•

“An order directing Murphy to recalculate and add all earned time from the

dates of November 21,2005, to December 5, 2014;”

•

“An order directing Hall to set a parole hearing date for parole consideration;

although the question of release to parole remains within the discretion of the

Parole Board[.]”

(Id. at 13). Mr. Medina further requests attorney’s fees and costs. (Id.).

As will now be discussed, Mr. Medina’s complaint should be dismissed.

II.

DISCUSSION

The Court reviews a prisoner’s complaint to determine whether any claims are

appropriate for summary dismissal as frivolous or seek relief against a defendant

immune from such relief. 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A;

D.C.COLO.LCivR 8.1(b). “[A] complaint, containing as it does both factual allegations

and legal conclusions, is frivolous where it lacks an arguable basis either in law or in

4

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 5 of 7

fact.” See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A claim that is legally

frivolous is one based on an indisputably meritless legal theory, such as infringement of

a legal interest that clearly does not exist. Id. at 327. “[A] finding of factual frivolousness

is appropriate when the facts alleged rise to the level of the irrational or wholly

incredible.” Denton v. Hernandez, 504 U.S. 25, 33 (1992). There is considerable overlap

between the standards for frivolousness and failure to state a claim and a claim that

lacks an arguable basis in law is dismissible under both standards. Neitzke, 490 at 326,

328.

Mr. Medina’s complaint is subject to summary dismissal. “The Fourteenth

Amendment’s Due Process Clause protects persons against deprivations of life, liberty,

or property; and those who seek to invoke its procedural protection must establish that

one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). A

liberty interest may arise from the Constitution itself or it may arise from an expectation

or interest created by state laws or policies. Id. The United States Constitution does not

afford prisoners a right to be released on parole before the expiration of a valid

sentence. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979). Absent a

state-created liberty interest, “there simply is no constitutional guarantee that

[determinations of parole eligibility] must comply with standards that assure error-free

determinations.” Id. Mr. Medina therefore must show that Colorado law creates a liberty

interest in the PED he seeks.

Colorado law does not afford Mr. Medina a liberty interest in a specific PED.

5

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 6 of 7

Colorado state prisoners lack a liberty interest in parole because parole is discretionary

under state law. Fetzer v. Raemisch, 803 F. App’x 181, 184 (10th Cir. 2020)

(unpublished) (citing Greenholtz); see also Nowak v. Suthers, 320 P.3d 340, 348 (Colo.

2014) (explaining that under Colorado law, “[t]he grant of parole is a privilege, not a

right,” and even after a “PED is calculated, the parole board has the ultimate discretion

to grant or deny parole based on the totality of the circumstances”). Because Colorado

does not create a liberty interest in parole itself, Mr. Medina “has no subsidiary liberty

interest in the process used to determine his PED, even if that process involves a

nondiscretionary calculation.” Fetzer, 803 F. App’x at 184. “Put differently, absent an

overarching right to parole, the mere fact that the process used to determine a PED is

(allegedly) nondiscretionary is insufficient to create a liberty interest that the Due

Process clause protects.” Id. at 185; see also Baars v. Raemisch, 814 F. App’x 376

(10th Cir. 2020) (unpublished) (affirming summary dismissal of pro se prisoner’s § 1983

action against the CDOC that alleged failure to calculate a statutorily correct PED in

violation of prisoner’s Fourteenth Amendment due process rights). Mr. Medina’s due

process claim therefore lacks an arguable basis in law. Consequently, it should be

dismissed under 28 U.S.C. § 1915(e)(2)(B)(i), or, in the alternative, (ii).2

2 To the extent any of Mr. Medina’s allegations or arguments could be construed as requesting

immediate or speedier release from custody, such a claim must be brought in a habeas corpus action.

Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). And insofar as Mr. Medina asserts the lack of “an

adequate state judicial process to correct the problem,” the assertion is merely tacked on to the end of his

due process claim and lacks sufficient factual allegations to comply with Rule 8 of the Federal Rules of

Civil Procedure.

6

Case No. l:23-cv-02241-LTB-SBP Document 10 filed 12/11/23 USDC Colorado pg 7 of 7

III.

RECOMMENDATION

For these reasons, it is respectfully recommended that the amended Prisoner

Complaint (ECF No. 7) and this action be dismissed pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) or, in the alternative, (ii).

DATED December 11, 2023.

BY THE COURT:

Susan Prose

United States Magistrate Judge

7

Case No. l:23-cv-02241-LTB-SBP Document 12 filed 01/10/24 USDC Colorado pg 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 23-cv-02241-LTB-SBP

DELANO MEDINA,

Plaintiff,

v.

JENNIFER MURPHY,

REBEKAH RYAN, and

JR HALL,

Defendants.

ORDER

This matter is before the Court on the Recommendation of United States

Magistrate Judge dated December 11,2023. (ECF No. 10). Plaintiff has filed timely

written objections to the Recommendation. (ECF No. 11). The Court has therefore

reviewed the Recommendation de novo in light of the file and record in this case. On de

novo review the Court concludes that the Recommendation is correct for the reasons

stated therein.

Accordingly, it is

ORDERED that Plaintiffs written objections (ECF No. 11) are OVERRULED. It is

FURTHER ORDERED that the Recommendation of United States Magistrate

Judge (ECF No. 10) is ACCEPTED AND ADOPTED. It is

FURTHER ORDERED that the amended Prisoner Complaint (ECF No. 7) be

1

Case No. l:23-cv-02241-LTB-SBP Document 12 filed 01/10/24 USDC Colorado pg 2 of 2

DISMISSED for the reasons stated in the Recommendation. It is

FURTHER ORDERED that leave to proceed in forma pauperis on appeal is

DENIED WITHOUT PREJUDICE to the filing of a motion seeking leave to proceed in

forma pauperis on appeal in the United States Court of Appeals for the Tenth Circuit.

The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this

dismissal would not be taken in good faith.

DATED at Denver, Colorado, this

10th

day of January, 2024.

BY THE COURT:

s/Lewis T. Babcock

LEWIS T. BABCOCK, Senior Judge

United States District Court

2

Appellate Case: 24-1029

Document: 010111086338

Date Filed: 07/29/2024

Page: 1

UNITED STATES COURT OF APPEALS

FILED

United States Court of Appeals

Tenth Circuit

FOR THE TENTH CIRCUIT

July 29, 2024

Christopher M. Wolpert

Clerk of Court

DELANO MEDINA,

Plaintiff - Appellant,

No. 24-1029

(D.C.No. 1:23-CV-02241 -LTB-SBP)

(D. Colo.)

v.

JENNIFER MURPHY, et al.,

Defendants - Appellees.

ORDER

Before TYMKOVICH, MATHESON, and McHUGH, Circuit Judges.

Appellant’s petition for rehearing is denied.

The petition for rehearing en banc was transmitted to all of the judges of the court

who are in regular active service. As no member of the panel and no judge in regular

active service on the court requested that the court be polled, that petition is also denied.

Entered for the Court

CHRISTOPHER M. WOLPERT, Clerk