Kessman v. Smith ( 2022 )

Appellate Case: 22-1214 Document: 010110768036 Date Filed: 11/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 14, 2022
_______________________________________
Christopher M. Wolpert
Clerk of Court
BRADLEY C. KESSMAN,
Petitioner - Appellant,
v. No. 22-1214
(D.C. No. 1:22-CV-00914-LTB-GPG)
JUSTIN E. SMITH, L.C.S.O. (D. Colo.)
Administration; PHIL WISER, the
Attorney General of the State of
Colorado, and nine other Does;
ROBERTS, Loveland Police Dept.,
Respondents - Appellees.
_______________________________________
ORDER
_______________________________________
Before BACHARACH, BALDOCK, and McHUGH, Circuit Judges.
_______________________________________
This appeal involves a habeas action. A habeas action is appropriate
when a state prisoner challenges the fact or duration of confinement.
Preiser v. Rodriguez, 411 U.S. 475, 499–500 (1973). When a state prisoner
challenge the conditions of confinement, however, the appropriate action is
a civil suit under 42 U.S.C. § 1983. Standifer v. Ledezma, 653 F.3d 1276,
1280 (10th Cir. 2011).
The difference can be significant. For example, the two actions entail
different filing fees, parties, and remedies. See Pischke v. Litscher, 178
F.3d 497, 500 (7th Cir. 1999) (filing fees); Moore v. Pemberton, 110 F.3d
Appellate Case: 22-1214 Document: 010110768036 Date Filed: 11/14/2022 Page: 2
22, 23 (7th Cir. 1997) (parties); McIntosh v. U.S. Parole Comm’n, 115 F.3d
809, 811 (10th Cir. 1997) (remedies);
Mr. Bradley Kessman is a state prisoner. But he’s not challenging the
fact or duration of his confinement; he’s instead seeking money from
correctional officers to compensate him for the conditions of his
confinement. So the district court dismissed the action without prejudice to
Mr. Kessman’s opportunity to bring a civil suit.
Certificate of Appealability
Mr. Kessman wants to appeal. To do so, he needs a certificate of
appealability. 28 U.S.C. § 2253(c)(1)(A); Harris v. Dinwiddie, 642 F.3d
902, 906 (10th Cir. 2011). The district court denied the certificate. We can
grant the certificate of appealability only if the “district court’s resolution
of the constitutional claim was either ‘debatable or wrong.’” Laurson v.
Leyba, 507 F.3d 1230, 1232 (10th Cir. 2007) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)).
In our view, the district court’s ruling was not reasonably debatable.
If Mr. Kessman proves his claims, he might be entitled to money damages
but not a writ of habeas corpus.
Even if habeas relief were appropriate, though, the named defendants
couldn’t carry out the writ. A writ of habeas corpus involves release, so the
only proper respondent would have been the custodian. See McIntosh v.
U.S. Parole Comm’n, 115 F.3d 809, 812 (10th Cir. 1997) (release); Bango
2
Appellate Case: 22-1214 Document: 010110768036 Date Filed: 11/14/2022 Page: 3
v. Thornburg, 942 F.2d 1487, 1491–92 (10th Cir. 1991) (proper
respondent). The defendants here aren’t custodians; they’re correctional
officials who had allegedly subjected Mr. Kessman to improper conditions
of confinement.
Because the allegations and parties didn’t fit a habeas action, the
district court ordered Mr. Kessman to amend his pleadings. He tried, but he
didn’t fix the defects. So the district court dismissed the action without
prejudice. Mr. Kessman’s appellate arguments don’t address the
availability of habeas relief for the alleged wrongdoing. So we deny Mr.
Kessman’s request for a certificate of appealability. In the absence of a
certificate, we dismiss the case.
Motion for Relief and Motion to Address Caselaw
Mr. Kessman not only sought a certificate of appealability but also
filed three documents entitled “Motion for Relief for All (8) Claims $8.8
Million,” “Motion for Address Case Law/Seek Relief from Damages,” and
“Motion to adhere to all evidence in this case & the other cases mentioned
in the motion,” and “Motion to Appoint Counsel & Seek Relief for
Damages Sustained ($8.8) Million.” In these documents, Mr. Kessman
apparently seeks a monetary award. But we aren’t authorized to grant
monetary relief. So we deny these motions.
3
Appellate Case: 22-1214 Document: 010110768036 Date Filed: 11/14/2022 Page: 4
Appointment of Counsel
Mr. Kessman also seeks appointment of appellate counsel. In habeas
appeals, we can appoint counsel in the interest of justice. 18 U.S.C.
§ 3006A(a) (2)(B). But appointment of counsel would serve little purpose
here because an attorney couldn’t help Mr. Kessman shoehorn his
allegations into a habeas action. So we decline to appoint counsel for Mr.
Kessman.
Leave to Proceed in Forma Pauperis
Mr. Kessman also seeks leave to proceed in forma pauperis. Because
Mr. Kessman can’t afford the filing fee, we grant leave to proceed in forma
pauperis. 28 U.S.C. § 1915(a)(1).
Entered for the Court
Robert E. Bacharach
Circuit Judge
4