Walker v. White

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 27, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
MARLON WALKER,
Plaintiff - Appellant,
v. No. 14-1380
(D.C. No. 1:13-CV-02142-RPM)
SUSAN WHITE, DOC Division of Adult (D. Colo.)
Parole, in her personal capacity for
damages; GUILLERMO SAMUDIO, DOC
Division of Adult Parole, in his personal
capacity for damages; DANA MADRID,
DOC Division of Adult Parole, in her
personal capacity for damages; BRIAN
STRUZESKI, DOC Division of Adult
Parole, in his personal capacity for
damages; ED THOMAS, Member of the
Parole Board, in his personal capacity for
damages; DENISE BALAZIC, Member of
the Parole Board, in her personal capacity
for damages; PATRICIA VAN WAAK,
Member of the Parole Board, in her
personal capacity for damages; JOHN
O'DELL, Member of the Parole Board, in
his personal capacity for damages;
MICHAEL ANDERSON, Member of the
Parole Board, in his personal capacity for
damages; REBECCA OAKES, Member of
the Parole Board, in her personal capacity
for damages; ANTHONY YOUNG,
Member of the Parole Board, in his
personal capacity; BRANDON SHAFFER,
Member of the Parole Board, in his
personal capacity; ALFREDO PENA,
Member of the Parole Board, in his
personal capacity; JOE MARTIN
MORALES, Member of the Parole Board,
in his personal capacity; BECKY
LUCERO, Member of the Parole Board, in
her personal capacity for damages; JOHN
DOE, Arkansas Valley Correctional
Facility, in his personal capacity for
damages,
Defendants - Appellees.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, HOLMES and McHUGH, Circuit Judges.
_________________________________
Marlon Walker, a former Colorado inmate and parolee, appeals from the
district court’s dismissal of his 42 U.S.C. § 1983 civil rights action against numerous
Colorado state parole officers and members of the Colorado Parole Board (the State
Defendants). The district court dismissed the complaint under Fed. R. Civ. P.
12(b)(6), ruling Walker failed to allege facts showing the State Defendants violated
any clearly established constitutional law and therefore failed to state a § 1983 claim.
We exercise jurisdiction under 28 U.S.C. § 1291, and affirm the dismissal, but on
different grounds because Walker’s claims are time barred.
I. Background
The following factual allegations are from Walker’s complaint. Walker was
charged in 2005 with second degree burglary, second degree assault, criminal attempt
*
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. 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.
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to commit sexual assault and unlawful sexual contact, and he pleaded guilty to
second degree assault. He alleges that his plea agreement included the state’s
stipulation that there was no factual basis for a sex offense conviction. In February
2006, following an administrative review hearing, the Colorado Department of
Corrections (DOC) classified Walker as an S-4 sex offender, which applies to
inmates who were not convicted of a sex offense but for whom sex offender
treatment has been recommended. See Chambers v. Colo. Dep’t of Corrs., 205 F.3d
1237, 1240 n.8 (10th Cir. 2000) (describing the S-4 sex offender classification).
Colorado law then in effect gave the DOC complete discretion to classify inmates not
convicted of a sex offense as a sex offender notwithstanding any contrary prosecution
stipulation or court finding. Colo. Rev. Stat. § 16-22-103(1)(d) (2005); see also
Gwinn v. Awmiller, 354 F.3d 1211, 1218 (10th Cir. 2004) (holding that an inmate not
convicted of a sex offense may be classified by the DOC as a sex offender if it
affords him procedural protections).1 Walker was informed in 2007 that he was
required to undergo sex offender treatment in prison. The DOC concluded in 2009,
that Walker committed a disciplinary violation that further justified his sex offender
classification.
1
Walker makes many assertions on appeal that he was wrongfully classified as
a sex offender and that the DOC did not afford him the requisite due process in so
classifying him, even though he now claims he is not challenging the
constitutionality of the DOC’s determination to classify him as a sex offender. The
State Defendants dispute those allegations, and included in their motion to dismiss
the evidence of sexual misconduct that the DOC relied upon to classify Walker as a
sex offender. These disputes are not relevant to the disposition of this appeal,
however.
3
In January 2011, Walker was first released from prison on parole. He was
required as a condition of his parole to enroll in a sex offender treatment program
with a state contracted therapy provider, as part of which he was required to admit
and accept responsibility for sexual misconduct, including passing a polygraph
examination. In addition, he was required not to have contact with minors and to
participate in Alcoholics and Narcotics Anonymous.2 He was referred to a Denver
treatment program, Sexual Offense Resource Services, L.L.C. (SORS). On
August 10, 2011, SORS terminated Walker because he failed to accept responsibility
for sexual abuse and failed a SORS polygraph examination. He alleges he was
arrested for violating parole that day, and that his parole was ultimately revoked in
September 2011 based on his termination from the sex offender treatment program.
Walker was later released on parole, under the same terms and conditions as
his January 2011 terms and conditions of parole. He was referred to treatment with a
second treatment provider, Teaching Humane Existence Treatment Program, Inc.
(THE). In November 2011, THE terminated Walker from its program because he
refused to admit to and accept responsibility for sexual misconduct. The therapist at
THE concluded Walker had a “high risk to reoffend.” Aplt. App. at 22 (internal
quotation marks omitted). On December 19, 2011, his parole was again revoked
2
Although these were the terms and conditions of Walker’s parole, he was not
statutorily required to participate in sex offender treatment under Colorado’s Sex
Offender Lifetime Supervision Act because he was not convicted of a sex offense.
See Colo. Stat. § 16-11.7-105 (requiring persons convicted of sex offenses to undergo
appropriate sex offender treatment).
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because THE terminated him for his refusal to admit and accept responsibility for
sexual misconduct.
Walker filed his § 1983 complaint on August 11, 2013. He alleged that the
terms and conditions of his parole violated his First, Fifth and Fourteenth
Amendment rights. Id. at 27-28. He also claimed that the State Defendants violated
his constitutional rights by revoking his parole when he failed to comply with these
unconstitutional terms and conditions. Id. at 28.
The State Defendants moved for dismissal under Rule 12(b)(6) on the grounds
that Walker’s claims were barred by the two-year statute of limitations, as well as the
favorable termination requirement of Heck v. Humphrey, 512 U.S. 477 (1994); that
they were entitled to qualified immunity; and that Walker failed to allege the
requisite personal participation of the State Defendants. The district court dismissed
on the ground that the State Defendants were entitled to qualified immunity. See
Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The doctrine of qualified immunity
protects government officials from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” (internal quotation marks omitted)).
II. Discussion
“To state a claim under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution and laws of the United States, and must show that the
alleged deprivation was committed by a person acting under color of state law.”
West v. Atkins, 487 U.S. 42, 48 (1988). We review de novo the district court’s
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dismissal of the State Defendants’ claim under Rule 12(b)(6). See Peterson v.
Grisham, 594 F.3d 723, 727 (10th Cir. 2010).
The State Defendants argued in their motion for dismissal, and now on appeal
that Walker’s claims against the State Defendants were barred by the two-year statute
of limitations. Walker argues his claims are not time-barred because he is only
challenging the State Defendants’ actions on and after August 2011 of revoking his
parole when he did not comply with the parole terms and conditions obligating him to
participate in sex offender therapy. Opening Br. at 10. He argues his § 1983 claims
accrued on December 19, 2011, when his parole was revoked for a second time. We
disagree with Walker, and conclude it is clear from the allegations in his complaint
that his claims are time-barred as a matter of law. See United States v. Sandoval,
29 F.3d 537, 542 n.6 (10th Cir. 1994) (holding we may affirm on alternative grounds
if “there is a record sufficient to permit conclusions of law”), and Aldrich v.
McCulloch Props., Inc., 627 F.2d 1036, 1041 n. 4 (10th Cir. 1980) (holding a statute
of limitations question may be appropriately resolved under Rule 12(b)(6) when the
dates given in the complaint make clear that the claim is time-barred).
The statute of limitations for § 1983 actions brought in Colorado is two years
from the time the cause of action accrued. Fogle v. Pierson, 435 F.3d 1252, 1258
(10th Cir. 2006). While state law governs the applicable statute of limitations,
federal law determines when the claim accrues and when the limitations period starts
to run. Mondragón v. Thompson, 519 F.3d 1078, 1082 (10th Cir. 2008). “A § 1983
action accrues when facts that would support a cause of action are or should be
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apparent.” Fogle, 435 F.3d at 1258 (internal quotation marks omitted). “Since the
injury in a § 1983 case is the violation of a constitutional right, such claims accrue
when the plaintiff knows or should know that his or her constitutional rights have
been violated.” Smith v. City of Enid, 149 F.3d 1151, 1154 (10th Cir. 1998)
(citations and internal quotation marks omitted). The claim accrues when the
constitutional injury occurs, “not when the consequence of that constitutional
injury . . . manifested itself.” Id.
It is clear from his complaint that Walker knew the exact terms and conditions
of parole on which his constitutional claims are based when he was paroled in
January 2011. He knew then that he was required to undergo sex offender treatment
with a state-contracted therapy provider, that he had to admit and accept
responsibility for his sexual misconduct, submit to polygraph examinations, and
avoid minors. Though he asserts he is only challenging the constitutionality of
revoking his parole on and after August 2011, his complaint makes clear revocation
was based solely on his failure to comply with these terms and conditions. The fact
that parole was revoked after his treatment providers terminated him because he
failed polygraph examinations and refused to admit and accept responsibility for his
sexual misconduct was merely a consequence of the stated terms of his parole. The
August 2011 decision to issue a revocation complaint, and the September and
December 2011 revocation decisions were not separate and distinct constitutional
injuries, but simply direct consequences of the January 2011 terms and conditions of
his parole. As in Smith, “the constitutional injury . . . which trigger[ed] the statute of
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limitations for purposes of § 1983, occurred when [the terms and conditions of
Walker’s parole were imposed], not when the consequence of that constitutional
injury . . . manifested itself.” 149 F.3d at 1154. Thus, we conclude that all of
Walker’s claims against the State Defendants are time-barred.
The judgment of the district court is affirmed.
Entered for the Court
Jerome A. Holmes
Circuit Judge
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