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Barrett v. Kersey

United States District Court, D. Utah

May 15, 2019

VICTOR KERSEY et al., Defendants.



         Plaintiff, inmate Kevin Barrett, brings this pro se civil-rights action, see 42 U.S.C.S. § 1983 (2019), [1] in forma pauperis, see 28 Id. § 1915. Having now screened the Complaint, (Doc. No. 4), under its statutory review function, [2] the Court orders Plaintiff to show cause why the complaint should not be dismissed for failure to state a claim.


         Plaintiff 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 damages.


         1. Failure-to-State-a-Claim Standard

         When 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 original).

         The 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 omitted)).

         2. Statute of Limitations

         "Utah's 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))).

         3. Denial of Parole

         Plaintiff 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.

         However, 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.

         4. ...

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