Wach v. Cochran ( 2023 )

Appellate Case: 22-4077 Document: 010110796762 Date Filed: 01/12/2023 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT January 12, 2023
_________________________________
Christopher M. Wolpert
Clerk of Court
PAUL WACH,
Plaintiff - Appellant,
v. No. 22-4077
(D.C. No. 2:20-CV-00847-JNP)
CARRIE L. COCHRAN; GREG (D. Utah)
JOHNSON,
Defendants - Appellees,
and
BRETT VAROZ; MARSHALL
THOMPSON; MIKE HADDON; UTAH
BOARD OF PARDONS AND PAROLE;
UTAH DEPARTMENT OF
CORRECTIONS BOARD AND PAROLE
MEMBERS; UTAH DEPARTMENT OF
CORRECTIONS; DONA CAMPAGNA,
Defendants.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before MATHESON, KELLY, and ROSSMAN, Circuit Judges.**
_________________________________
*
This order and judgment is not binding precedent, except under the doctrines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.
**
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.
Appellate Case: 22-4077 Document: 010110796762 Date Filed: 01/12/2023 Page: 2
Plaintiff Paul Wach, an inmate appearing pro se, appeals from the district court’s
dismissal of his civil rights complaint on screening. 28 U.S.C. § 1915A(b); Wach v. Utah
Bd. of Pardons & Parole, No. 20-CV-847, 2022 WL 3082897 (D. Utah Aug. 3, 2022).
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
Background
In an amended complaint,1 Mr. Wach named Utah Board of Pardons and
Parole (BPP) Chair Carrie Cochran, BPP member Greg Johnson, and John/Jane Does
1–10 as defendants. R. 120–22. It is unclear who the John/Jane Does refer to, as
they are only described as unnamed employees of the BPP. R. 122.
Mr. Wach alleged that Ms. Cochran and Mr. Johnson violated his rights to
procedural and substantive due process and equal protection, as well as to be free of
cruel and unusual punishment. R. 125–26. He alleged that approximately around
April 2019, Ms. Cochran and Mr. Johnson each made comments that he had been
given his full BPP file, but then in May 2019 he received a letter stating that he had
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Defendants were not served and did not appear in the district court or in this appeal.
The district court ordered Mr. Wach to cure the deficiencies in his initial complaint,
which, in addition to naming Ms. Cochran and Mr. Johnson, named as defendants the
Utah Department of Corrections, the Utah Board of Pardons and Parole, and four other
individuals. On appeal, Mr. Wach focuses on the dismissal of his claims against Ms.
Cochran and Mr. Johnson. Insofar as the unnamed and unserved defendants, they are not
parties to the case and do not prevent a dismissal order on all other claims from being
“final and appealable.” See Raiser v. Utah Cnty., 409 F.3d 1243, 1245 n.2 (10th Cir.
2005).
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Appellate Case: 22-4077 Document: 010110796762 Date Filed: 01/12/2023 Page: 3
not been given two items that were in the file. R. 123. He alleged that this omission
led to a longer time in prison and caused him various emotional injuries. R. 126. He
sought damages, a fine, and an order that the BPP not retaliate against him. R. 128.
The district court held that the two named defendants were absolutely immune
from damages liability based upon their decision to deny him parole and that the
Utah parole statute did not create a liberty interest protected by the federal
constitution. It also determined that no facts supported an order against retaliation
and no authority allowed it to impose a fine in these circumstances. On appeal, Mr.
Wach contends that he was denied a parole date (and a rehearing date was set) based
upon false information that was not disclosed to him and that the parole board is not
immune.
Discussion
We note that Mr. Wach is proceeding under 42 U.S.C. § 1983, not 28 U.S.C.
§ 2241. We construe pro se pleadings liberally, but do not act as advocates for pro se
litigants. United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009). “Dismissal
for failure to state a claim is a legal question we review de novo.” Young v. Davis,
554 F.3d 1254, 1256 (10th Cir. 2009). We accept all well-pleaded factual allegations
in the complaint as true and construe them in the light most favorable to the plaintiff.
Id. To survive dismissal for failure to state a claim, the facts as alleged must state a
plausible claim for relief which must be more than a “sheer possibility.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
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On appeal, Mr. Wach argues that the district court erred because BPP members
are not entitled to immunity from damages liability if they engage in intentional
wrongdoing. Aplt. Br. at 2, 4. Members of the BPP are “absolutely immune from
damages liability for actions taken in performance of the Board’s official duties
regarding the granting or denying of parole.” Knoll v. Webster, 838 F.2d 450, 451
(10th Cir. 1988) (per curiam). Here, all indications are that Ms. Cochran and Mr.
Johnson’s comments came within the scope of their official duties. Thus, both
defendants have absolute immunity with respect to Mr. Wach’s claim for damages.
There is no other basis for Mr. Wach’s requested injunctive relief.
Moreover, there is no constitutional right of a validly convicted person to be
conditionally released before the end of their sentence — the valid conviction “has
extinguished that liberty right.” Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979). Mr. Wach argues that the Utah parole statute creates
a liberty interest, but this circuit has held repeatedly that the Utah statute places no
limits on the BPP’s discretion and does not create a liberty interest protectable by the
U.S. Constitution. Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1214–15 (10th
Cir. 2009); Malek v. Haun, 26 F.3d 1013, 1016 (10th Cir. 1994). Further, denial of
parole under a statute which vests discretion in the parole board is not cruel and
unusual punishment. Lustgarden v. Gunter, 966 F.2d 552, 555 (10th Cir. 1992).
Thus, Mr. Wach has not stated a plausible claim for relief.
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AFFIRMED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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