United States District Court, D. Utah
MEMORANDUM DECISION & ORDER TO SHOW
STEWART UNITED STATES DISTRICT JUDGE.
inmate Kevin Barrett, brings this pro se
civil-rights action, see 42 U.S.C.S. § 1983
(2019),  in forma pauperis, see
28 Id. § 1915. Having now screened the
Complaint, (Doc. No. 4), under its statutory review function,
Court orders Plaintiff to show cause why the complaint should
not be dismissed for failure to state a claim.
names the following Utah Department of Corrections
defendants: Director Victor Kersey, Sex Offender Treatment
Program (SOTP); and therapists Colleen Jones and Ruth
Williams. He alleges these defendants violated his federal
constitutional rights by removing him from SOTP (primarily
due to mental-health limitations), which caused him to be
denied parole, receive reduced classification, and endure
mental suffering. He specifies that Defendant Jones removed
him from SOTP on April 27, 2009; Defendant Williams removed
him on March 20, 2013; and he removed himself in 2015. He
suggests that Defendant Kersey played a role in each removal.
The remedies he requests are termination of his sentence and
deciding whether a complaint states a claim upon which relief
may be granted, the Court takes all well-pleaded factual
statements as true and regards them in a light most favorable
to the plaintiff. Ridge at Red Hawk L.L.C. v.
Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007).
Dismissal is fitting when, viewing those facts as true, the
Court sees that the plaintiff has not posed a
"plausible" right to relief. See Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Robbins
v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir. 2008).
"The burden is on the plaintiff to frame a
'complaint with enough factual matter (taken as true) to
suggest' that he or she is entitled to relief."
Robbins, 519 F.3d at 1247 (quoting Twombly,
550 U.S. at 556). When a civil rights complaint contains
"bare assertions," involving "nothing more
than a 'formulaic recitation of the elements' of a
constitutional . . . claim," the Court considers those
assertions "conclusory and not entitled to" an
assumption of truth. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1951 (2009) (quoting Twombly, 550 U.S. at
554-55). In other words, "the mere metaphysical
possibility that some plaintiff could prove
some set of facts in support of the pleaded claims
is insufficient; the complaint must give the court reason to
believe that this plaintiff has a reasonable
likelihood of mustering factual support for these
claims." Red Hawk, 493 F.3d at 1177 (italics in
Court construes pro se "'pleadings
liberally,' applying a less stringent standard than is
applicable to pleadings filed by lawyers. Th[e] court,
however, will not supply additional factual allegations to
round out a plaintiff's complaint or construct a legal
theory on a plaintiff's behalf." Whitney v. New
Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997)
(citations omitted). The Tenth Circuit holds that, if the
pleadings can reasonably be read "to state a valid claim
on which the plaintiff could prevail, [they should be read]
so despite the plaintiff's failure to cite proper legal
authority, his confusion of various legal theories, his poor
syntax and sentence construction, or his unfamiliarity with
pleading requirements." Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). Still, "the proper
function of the district court [is not] to assume the role of
advocate for the pro se litigant." Id.; see
also Peterson v. Shanks, 149 F.3d 1140, 1143 (10th Cir.
1998) (citing Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989) (per curiam)). Dismissing the complaint
"without affording the plaintiff notice or an
opportunity to amend is proper only 'when it is patently
obvious that the plaintiff could not prevail on the facts
alleged, and allowing him an opportunity to amend his
complaint would be futile.'" Curley v.
Perry, 246 F.3d 1278, 1281-82 (10th Cir. 2001) (quoting
Hall, 935 F.2d at 1110 (additional quotation marks
Statute of Limitations
four-year residual statute of limitations . . . governs suits
brought under section 1983.” Fratus v. Deland,
49 F.3d 673, 675 (10th Cir. 1995). Plaintiff's claims
accrued when "'facts that would support a cause of
action are or should be apparent.'" Id. at
675 (citation omitted). Some of the circumstances underlying
these claims appear to have occurred more than four years
before this case was filed. The face of complaint states that
the claims against Defendants Jones and Williams accrued
respectively on April 27, 2009 and March 20, 2013--which is
more than four years before the Complaint was filed on
November 6, 2017. The Court thus proposes to dismiss these
two defendants under the statute of limitations. Jamerson
v. Heimgartner, 752 Fed.Appx. 557, 562 (10th Cir. Sept.
21, 2018) (unpublished) (“A district court may dismiss
a complaint sua sponte under § 1915A(b)(1) based on an
affirmative defense such as the statute of limitations when
‘the defense is obvious from the face of the complaint
and no further factual record is required to be
developed.'" (quoting Fogle v. Pierson, 435
F.3d 1252, 1258 (10th Cir. 2006) (quotations omitted))).
Denial of Parole
alleges that Defendants' unconstitutional treatment of
him resulted in Utah Board of Pardons and Parole members
(BOP) departing from state sentencing guidelines-i.e.,
“the matrix”--in determining not to grant him
parole. He states that he would have been paroled by now if
it were not for Defendants.
Plaintiff's allegations do not pass the screening stage
of his complaint here; he has not stated a federal
constitutional violation. After all, "[t]here is no
constitutional or inherent right of a convicted person to be
conditionally released before the expiration of a valid
sentence." Greenholtz v. Inmates of Neb. Penal &
Corr. Complex, 442 U.S. 1, 7 (1979). "Parole is a
privilege," not a constitutional right. See
Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir.
1992). Furthermore, it is well established that the Utah
parole statute does not create a liberty interest entitling
prisoners to federal constitutional protection. See Malek
v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Because
Plaintiff has no substantive liberty interest in parole under
the Federal Constitution, he may not in this federal suit
challenge procedures used to deny him parole. See Olim v.
Wakinekona, 461 U.S. 238, 250 (1983). The Court
thus concludes that Plaintiff fails to state a claim here.