Kessman v. Smith

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 14, 2022
• Docket: 22-1214
• Status: Unpublished

Opinion

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