Hudson v. Mason ( 2011 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT November 9, 2011
Elisabeth A. Shumaker
Clerk of Court
DWAYNE A. HUDSON,
Plaintiff - Appellant,
v. No. 11-1135
(D.C. No. 1:10-CV-02276-ZLW)
PAROLE OFFICER TODD MASON (P.O. (D. Colo.)
Mason); DETECTIVE RICHARD
SCHNEIDER (Det. Schneider);
COLORADO PAROLE BOARD;
CLEMENT BOURGEOIS (Det.
Bourgeois),
Defendants - Appellees,
and
DENVER POLICE DEPARTMENT;
PAROLE OFFICER SARA PHELPS (P.O.
Phelps); PAROLE OFFICER TRACY
SHARP (P.O. Sharp); DIVISION OF
ADULT SERVICES, Colorado Parole
Board,
Defendants.
ORDER DENYING LEAVE TO PROCEED
ON APPEAL IN FORMA PAUPERIS,
AND DISMISSING APPEAL
Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.
Dwayne A. Hudson wants to appeal in forma pauperis (ifp) from the district
court’s order dismissing his 42 U.S.C. § 1983 complaint.1 The complaint alleged
violations of Hudson’s civil rights stemming from the revocation of his parole for failing
to timely register as a sex offender. The district court, concluding Hudson’s complaint
was legally frivolous under Heck v. Humphrey, 512 U.S. 477 (1994), dismissed the
complaint sua sponte. See 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319,
324-25 (1989) (construing § 1915(d), the predecessor to § 1915(e)(2)). We deny his
request to proceed ifp and dismiss the appeal.
I. BACKGROUND2
After Hudson was paroled on August 26, 2008, he was required under Colorado
law to register as a sex offender by September 3, 2008, but did not attempt to do so until
September 5, 2008. When he did attempt to register at the Denver Police Department, he
claims a detective became aggressive and verbally abusive. The detective refused to
complete the registration and ordered him to leave. He contacted his parole officer, who
told him to try again on Monday, September 8. When he did so, he was arrested for
failing to timely register. His parole was then revoked for failing to timely register.
His complaint alleged: (1) the detective retaliated against him for his speech,
thereby depriving him of his due process right to register and his right to free speech; (2)
1
Our jurisdiction derives from 28 U.S.C. § 1291. We construe Hudson’s
complaint liberally because Hudson is not represented by counsel. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
2
The district court accepted as true the recitation of facts in Hudson’s complaint.
We do likewise. See McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th
Cir. 1991) (a district court may, but need not, “pierce the veil of the complaint’s factual
allegations” to determine whether the complaint is frivolous under § 1915(d)) (citation
omitted).
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the parole officer falsified evidence, depriving him of due process; (3) the detective
violated his Fourth Amendment rights by falsely swearing out an affidavit in support of
an arrest warrant; and (4) two other detectives violated Hudson’s rights to equal
protection and due process when they submitted false information to obtain a warrant for
his arrest. He sought damages for interference with his liberty.
The district court concluded Heck barred Hudson’s claims and dismissed his
complaint without prejudice. It also denied his motion to proceed ifp on appeal. Hudson
renews his ifp request with this Court.3
II. DISCUSSION
To proceed ifp on appeal, Hudson “must show a financial inability to pay the
required filing fees and the existence of a reasoned, nonfrivolous argument on the law
and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d
502, 505 (10th Cir. 1991) (emphasis added). We have reviewed Hudson’s motion to
proceed ifp and solicitously construed his briefs in light of the district court record. His
arguments are contrary to settled law and he makes no reasoned argument for
modification of that law.
A § 1983 complaint for damages caused by an allegedly unconstitutional
conviction or imprisonment “must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. Heck
3
After reviewing Hudson’s response to our order for briefing on the timeliness of
his notice of appeal, we are satisfied he timely filed his notice of appeal in accord with
the prison mailbox rule. See Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005).
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also bars proceedings challenging “the fact or duration of parole.” Crow v. Penry, 102
F.3d 1086, 1087 (10th Cir. 1996). Hudson’s complaint centers on the manner in which
he was treated at the police station, including not being permitted to register the first time
he appeared. While not complaining about his parole revocation, per se, he seeks redress
(in the form of damages) for the liberty he claims to have lost due to his arrest and the
revocation of his parole. Regardless of any rude treatment or delay he may have
encountered at the police station, Hudson was already late when he first appeared for
registration. His attempt to register (two days late), his contact with his probation officer,
his repeated attempt to register, as well as the allegedly false information provided by the
probation officer and the detectives might have, if sufficiently established and legally
significant, amounted to a defense to the possible revocation of his probation (or
mitigating factors in deciding the consequences). But they did not – his parole was
revoked. Because his parole revocation has not been invalidated, the district court
correctly concluded Heck bars his claims.
Hudson has not presented reasoned, non-frivolous arguments in support of the
issues raised on appeal. We DENY his motion to proceed ifp on appeal and remind him
of his obligation to pay the filing and docket fees in full to the clerk of the district court. 4
We DISMISS this appeal as frivolous, see 28 U.S.C. § 1915(e)(2)(b)(i), and thereby
impose two strikes for the purposes of 28 U.S.C. § 1915(g); one for the frivolous filing
and another for the frivolous appeal. See Jennings v. Natrona Cnty. Det. Ctr. Med.
4
See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of appeal
does not relieve a party from the responsibility to pay the appellate filing fees).
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Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an
action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count
as strikes.”). Hudson’s remaining motions – (1) for a show cause order and injunction
and (2) for an extension of time to serve the other parties - are DENIED.
Entered by the Court:
Terrence L. O’Brien
United States Circuit Judge
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