FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT August 31, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
EDWARD ALLEN,
Plaintiff - Appellant,
v. No. 15-1071
(D.C. No. 1:14-CV-01176-RBJ-MJW)
WARDEN FALK, Sterling Correctional (D. Colo.)
Facility,
Defendant - Appellee.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
_________________________________
Plaintiff Edward Allen Clutts1 is a current inmate of the Colorado Department
of Corrections (“CDOC”). Allen filed a civil lawsuit in which he named as
defendants individual parole board members, the Colorado Sex Offender
Management Board (“SOMB”), and James Falk, the former Warden of the Sterling
*
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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
1
Throughout this litigation, the plaintiff has been referred to alternatively as
Edward Clutts, Edward Allen, and Edward Allen Clutts. For the purposes of this
order, we will refer to him hereinafter as Allen.
Correctional Facility (“Sterling”), alleging three constitutional violations. The district
court dismissed Allen’s claims in their entirety but—on motion for rehearing—
reinstated the Eighth Amendment claim against Warden Falk. This claim alleged
that—to punish Allen for refusing to participate in sex-offender treatment—Warden
Falk subjected Allen to beatings by fellow prisoners and housed him with gang
members.
The district court referred Allen’s reinstated Eighth Amendment claim against
Warden Falk to a magistrate judge, who determined that all but one of the supporting
incidents Allen relied upon were barred by the statute of limitations. The magistrate
also determined that Allen’s claim regarding the sole incident not barred by the
statute of limitations was unexhausted. Despite these determinations, however, the
magistrate judge still proceeded to address Allen’s entire Eighth Amendment claim
(comprising all of the complained of incidents) on the merits and concluded that—
even without the statute of limitations and exhaustion issues—Allen had failed to
show a claim for deliberate indifference to an objectively serious risk to his safety.
Since Warden Falk was no longer working at Sterling, the magistrate also determined
that he could not be subjected to the injunction requested by Allen. The district court
adopted this recommendation and dismissed Allen’s sole surviving claim. Allen now
appeals and also seeks to re-raise claims and proceed against parties previously
dismissed. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.
2
BACKGROUND
A. Factual Background
In July 2004 Allen was sentenced to three concurrent terms of ten years to life
imprisonment for sexually assaulting a child while in a position of trust. At
sentencing, the state court concluded that it lacked authority to order Allen to
undergo sex-offender treatment. Once incarcerated, sometime about August 15, 2004,
Allen alleges that his case manager told him that he was recommending that Allen
enter the sex-offender treatment program, and that if Allen did not cooperate he
would be moved to a place where “things can be done.” In 2005 a representative at
the sex-offender program sent Allen a form requiring him to confess to the sex crime
for which he had been convicted. Allen refused to sign and was deemed non-
compliant with sex-offender treatment.
Allen contends that over the ten years since this incident he has been
repeatedly placed with security-threat-group (“STG”) prisoners who have threatened,
beaten, and attempted to kill him. By the time Allen arrived at Sterling on July 31,
2009, he had already filed a civil case about the violence he had experienced at
previous facilities. As part of this previous case, Allen had told a magistrate judge at
a hearing that he continued to live under threat of violence at Sterling. After this
hearing, Warden Falk moved Allen to a new living unit.
In his new living unit, Allen contends the violence continued. First, he alleges
that his cellmate told him that other inmates would beat the cellmate if he stayed in a
cell with Allen without fighting him. The prison moved that inmate to another cell,
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and Allen was assigned a new cellmate named Zamora—who Allen says had gang
affiliations. Although Allen repeatedly complained about Zamora, he says that guards
refused to move either him or Zamora, which allowed Zamora to physically assault
him in their cell. Allen also alleges two additional incidents of violence: (1) on
August 12, 2011, inmate Edward Douglas snuck up behind Allen with a lock in a
sock and beat Allen; and (2) on April 25, 2012, an inmate Allen identifies as having
the last name Windschel attacked Allen in the “gang pod” where Allen was being
held.
Allen asserts that in his time at Sterling he suffered scars on his face, a broken
rib, and a lost tooth. Despite this, however, Allen states that the Colorado Attorney
General’s Office refused to do anything about the continued threats of violence.
Allen also contends that Warden Falk purposefully housed Allen with STG prisoners,
and that it is common knowledge that STG prisoners beat, attack, and kill sex
offenders.
B. Procedural Background
Allen initiated his present action by filing a pro se complaint seeking relief
under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. After a magistrate judge determined
that Allen’s complaint was deficient under Rule 8 of the Federal Rules of Civil
Procedure for failing to allege the personal participation of each named defendant in
the deprivation of Allen’s rights, Allen filed an amended complaint. This amended
complaint asserted three claims for relief: (1) that Allen had twice been denied parole
by the Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth
4
Amendment rights because the Colorado Sex Offender Management Board
(“SOMB”) had deemed him non-compliant with the CDOC’s sex-offender treatment
program for refusing to admit guilt to a sex offense; (2) that unidentified prison
officials had retaliated against him in violation of the Constitution by denying him a
higher paying job because of his refusal to admit a sex offense; and (3) that Warden
Falk had acted with deliberate indifference to Allen’s safety by intentionally placing
him in a living unit with STG inmates who assaulted him because he is a sex
offender.
The district court initially dismissed all three claims, but eventually reinstated
the third one. Relevant to us here, it dismissed Allen’s first claim for three reasons:
(1) Allen’s request for release on parole is not cognizable in a civil rights action
under 42 U.S.C. § 1983, but must instead be raised in an application for habeas
corpus under 28 U.S.C. § 2241; (2) Allen could not seek damages in a § 1983 action
based on the denial of his parole because a ruling in his favor would necessarily
imply the invalidity of the Parole Board’s decision in contravention of Heck v.
Humphrey, 512 U.S. 477 (1994); and (3) Allen’s claim could not proceed against
SOMB because, as an entity of the State of Colorado, SOMB is entitled to Eleventh
Amendment immunity absent a waiver.
Allen does not appear to renew his second claim before us, and the district
court’s analysis of the third claim is irrelevant because the court ultimately reinstated
this claim on a motion for reconsideration. After this motion, a magistrate judge
heard Warden Falk’s dispositive motions against Allen’s third claim. The magistrate
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judge recommended that Allen’s claim against Warden Falk be dismissed for four
reasons: (1) the statute of limitations barred all claims except the incident on April
25, 2012; (2) for the incident on April 25, 2012, Allen had failed to exhaust his
administrative remedies as required by the PLRA; (3) even if the PLRA and the
statute of limitations did not bar Allen’s claim, Warden Falk had Eleventh
Amendment immunity against official-capacity claims; and (4) Allen’s claim did not
show an injury cognizable under the Eighth Amendment. Under de novo review, the
district court fully adopted the magistrate’s recommendation.
Allen now appeals the district court’s order, and also appears to appeal the
district court’s dismissal of one of his two previous claims. We interpret Allen’s
appellate brief as making three claims before this court:2 (1) that Allen had twice
been denied parole by the Colorado Parole Board, in violation of his Fifth, Eighth,
and Fourteenth Amendment rights because the SOMB had deemed him non-
compliant with the CDOC’s sex-offender-treatment program because he refused to
admit guilt to a sex offense; (2) that requiring Allen to admit having committed a sex
offense as part of his sex-offender treatment violates his Fifth Amendment rights; and
(3) that Warden Falk acted with deliberate indifference to Allen’s safety by
intentionally placing him in a living unit with STG inmates who assaulted him
because he is a sex offender.
2
Allen’s brief does not make precisely clear the exact bases for his appeal or
exactly what he is appealing. But because he is a pro se plaintiff we liberally construe
his pleadings. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
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DISCUSSION
A. Denial of Parole
As noted above, Allen’s first claim before the district court—which was
dismissed previously—alleged that Allen had twice been denied parole by the
Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth Amendment
rights because the SOMB had deemed him non-compliant with the CDOC’s sex-
offender-treatment program for refusing to admit guilt to a sex offense. Allen’s brief
before this court appears to renew at least part of this claim, asking for relief in the
form of an “[o]rder [to] the Parole-board to release the plaintiff to parole.” Before
this court, it does not appear that Allen requests compensatory damages as he did
before the district court.
We believe the district court correctly dismissed this claim because it is not
cognizable in a civil rights action under 42 U.S.C. § 1983. If Allen desires to attack
the “fact or duration of his confinement,” he cannot do so in a § 1983 action. Preiser
v. Rodriguez, 411 U.S. 475, 489–90 (1973). Rather, he must—in a separate
proceeding—file an application for habeas corpus under 28 U.S.C. § 2241 and allege
that the execution of his sentence violates federal law. See Davis v. Roberts, 425 F.3d
830, 833 (10th Cir. 2005). We affirm the district court’s dismissal of Allen’s first
claim.
B. Requirement to Admit a Sex Offense
Allen’s second claim—which it appears the district court considered in
dismissing his first claim for relief in his initial complaint—attacks the SOMB’s
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requirement that he admit guilt to a sex offense as part of his completing sex-offender
treatment. The district court dismissed this claim because it found that, as an entity of
the state, SOMB has Eleventh Amendment immunity absent a waiver. When Allen
claimed in his motion for reconsideration that he was seeking to sue the SOMB
members in their individual capacities, the district court additionally determined that
the defendants had not violated Allen’s Fifth Amendment rights by requiring that he
admit guilt to a sex offense because this requirement served a legitimate penological
interest.
We believe both of these rationales have merit, but we address only the second
one because it would hold true regardless of whether Allen’s claim was against
SOMB officials in their individual or official capacities. We agree that Allen cannot
allege a violation of his Fifth Amendment rights on these facts. First, we note that the
Supreme Court has held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). And, second, in Doe
v. Heil, 533 F. App’x 831 (10th Cir. 2013) (unpublished), a case challenging
Colorado’s prison regulations that required full disclosure of sexual history as part of
a sex-offender-treatment program, we concluded that Colorado furthered its
legitimate penological interest in rehabilitating sex offenders “by requiring them,
without regard to their Fifth Amendment stake in avoiding self-incrimination, to
submit to a polygraph and admit their full sexual history.” Id. at 839–840. Allen
provides us with no basis to vary from this holding.
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C. Eighth Amendment Claim Against Warden Falk
Allen’s final claim is that Warden Falk acted with deliberate indifference to
Allen’s safety by intentionally placing him in a living unit with STG inmates who
assaulted him because he is a sex offender. Before we can reach any of the arguments
Allen makes on the merits regarding this claim, however, we have an independent
duty to confront the issue of our own jurisdiction. Amazon, Inc. v. Dirt Camp, Inc.,
273 F.3d 1271, 1274 (10th Cir. 2001). Here, we perceive two jurisdictional questions
based on the parties’ briefs and the judgments below: (1) whether Allen timely filed a
Notice of Appeal and (2) whether Allen administratively exhausted his claim under
the PLRA. We will consider each of these arguments in turn.3
One prerequisite to our appellate jurisdiction is the timely filing of a Notice of
Appeal. United States v. Cebbalos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004).
Here, Allen needed to deposit his Notice of Appeal in the prison mail system within
thirty days after the entry of judgment. See Fed. R. App. P. 4. Warden Falk
challenges Allen’s timeliness, pointing out that the district court issued its Order and
Judgment on January 12, 2015. He claims this means that Allen needed to deposit his
Notice of Appeal in the prison mail system by February 11, 2015. Allen’s Notice of
Appeal is dated February 24, 2015 and was filed on March 2, 2015.
3
Our decision to address these specific jurisdictional issues should not be read
to suggest that the other threshold concerns raised by Warden Falk do not have merit.
Given our “leeway ‘to choose among threshold grounds for denying audience to a
case on the merits,’” we simply choose to consider only these particular jurisdictional
questions, which are sufficient to fully dispose of this claim. Sinochem Intern. Co. v.
Malaysia Intern. Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999)).
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We conclude that Allen filed a timely Notice of Appeal. As Warden Falk
notes, the district court entered judgment on January 12, 2015. But Warden Falk fails
to acknowledge that Allen filed a motion for rehearing on February 2, 2015. Under
Fed. R. App. P. 4(a)(4)(iv), the thirty-day clock for Allen to file his Notice of Appeal
did not begin to run until the court ruled on Allen’s motion. The court ruled on
Allen’s motion for rehearing on February 4. Allen’s Notice of Appeal was dated
February 24 and filed on March 2, well within this thirty-day limit.
But on the second jurisdictional issue, Allen does not fare so well. The PLRA
provides that “[n]o action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a) (2012). The PLRA requires dismissal
where a litigant has failed to exhaust before suing. See Fitzgerald v. Corrections
Corp. of Am., 403 F.3d 1134, 1140–41 (10th Cir. 2005). In its regulations, the CDOC
has a multi-step grievance process that includes a written informal grievance
followed by a formal three-step written grievance procedure, see Colorado
Department Of Corrections, Administrative Regulation 850-4 (2015) (hereinafter
“AR 850-4”), and we require that an inmate must appeal through all available
channels to exhaust administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030,
1032 (10th Cir. 2002). There is, however, an exception to the exhaustion requirement
when an inmate is prohibited from filing a grievance. See id. On two grounds, Allen
claims that he has satisfied his exhaustion requirements.
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First, before both the district court and this court, Allen asserts that he did in
fact file grievances. But as the magistrate noted, Allen appears to rely on grievances
filed years before the incidents he now complains about. These stale grievances
cannot serve to exhaust his remedies for later incidents.
Second, Allen claims that he attempted to file grievances but was kept from
doing so. Again, however, the magistrate correctly notes a fatal flaw in this
argument: Colorado’s administrative regulation requires that inmates must file their
first grievance “within 30 days of the discovery of the issue or complaint. . . .” AR
850-4. This means that, at latest, Allen needed to file a grievance for the last of his
identified incidents by May 25, 2012. Based on our reading of the record, the only
time Allen claims he attempted to file a grievance and was denied this right was on
March 19, 2014, nearly two years after he needed to do so.
For these reasons, we agree that Allen has not exhausted his administrative
remedies regarding his Eighth Amendment Claim against Warden Falk. We therefore
lack jurisdiction under the PLRA to consider this claim.4
Leave to Proceed in Forma Pauperis
Allen also petitions this court to grant him pauper status. Under 28 U.S.C.
§ 1915, any court of the United States may grant pauper status to “allow indigent
persons to prosecute, defend or appeal suits without prepayment of costs.” Coppedge
4
Although concluding it lacked jurisdiction under the PLRA, the magistrate
court still considered the merits of Allen’s Eighth Amendment claim to explain why
the claim should be dismissed if it indeed had jurisdiction. While we agree with the
magistrate’s analysis, we decline to further consider the merits of Allen’s claim given
our finding that we lack jurisdiction to consider the claim under the PLRA.
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v. United States, 369 U.S. 438, 441 (1962). Here, under 28 U.S.C. § 1915(a)(3), the
district court certified that any appeal would not be taken in good faith and denied
Allen’s motion to proceed in forma pauperis on appeal. In light of that action, we
will only grant pauper status if we conclude that the appeal contains a non-frivolous
argument. See Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th
Cir. 2007).
Turning to Allen’s motion, we believe that this appeal is not taken in good
faith and that Allen has failed to show the existence of a reasoned, nonfrivolous
argument on the law and facts in support of the issues raised on appeal. We remind
Allen that he must pay the filing and docket fees in full to the clerk of the district
court.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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