FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court TOBI KILMAN,
Plaintiff - Appellant,
v. No. 19-1476 (D.C. No. 1:19-CV-02265-LTB-GPG) DEAN WILLIAMS, Executive Director of (D. Colo.) the Colorado Department of Corrections; RICK RAEMISCH, Former Executive Director of the C.D.O.C.; JAMES RICKETS, Former Executive Director of the C.D.O.C.; TOM CLEMENTS, Former Executive Director of the C.D.O.C.; JOHN SUTHERS, Former Executive Director of the C.D.O.C.; JOE ORTIZ, Former Executive Director of the C.D.O.C.; ARISTEDES ZAVARES, Former Executive Director of the C.D.O.C.; FRANK GUNTER, Former Executive Director of the C.D.O.C.; WALTER KAUTZKY, Former Executive Director of the C.D.O.C. and unnamed former executive director of the C.D.O.C. Circa 1990-2019,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT *
* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. _________________________________
Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges. _________________________________
Tobi Kilman appeals pro se from the district court’s judgment dismissing his
42 U.S.C. § 1983 action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Kilman was a Colorado state prisoner at four different times between 1997 and
2017. In his complaint in this action, filed after his 2017 release, he alleged that he
was deprived of 56 months of statutory good-time and earned-time credits. He
asserted that this deprivation violated his rights under the Fifth, Eighth, and
Fourteenth Amendments. He sought damages against the current and former
Executive Directors of the Colorado Department of Corrections (CDOC) in their
individual capacities. His theory was that beginning in 1990, Executive Director
Kautzky implemented a policy of improperly awarding good-time and earned-time
credits, and successive Executive Directors have continued the policy.
After granting Kilman leave to proceed in forma pauperis (IFP), a magistrate
judge screened the complaint and ordered Kilman to show cause why the district
court should not dismiss it. Kilman responded. The magistrate judge then issued a
report and recommendation that the action should be dismissed pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994). Under Heck, if “a judgment in favor of [a state
prisoner] would necessarily imply the invalidity of his conviction or sentence,” a
district court must dismiss a § 1983 action “unless the plaintiff can demonstrate that
2 the conviction or sentence has already been invalidated.” Id. at 487. In the
alternative, the magistrate judge recommended dismissing the complaint as legally
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) for failure to allege facts showing either
a constitutional violation or personal participation by any of the named defendants.
Kilman filed timely objections to the magistrate judge’s recommendation. The
district court accepted and adopted the recommendation and dismissed the action for
the reasons stated in the recommendation. Kilman appeals.
II. Discussion
Kilman primarily argues that Heck does not apply to his action because he did
not seek to invalidate either his convictions or his sentences but only the manner in
which his sentences were imposed. We disagree and therefore affirm the district
court’s dismissal based on Heck. Consequently, we need not reach Kilman’s other
arguments.
Because the district court dismissed Kilman’s action as part of the IFP
screening process, we construe its Heck dismissal as one under § 1915(e)(2)(B)(ii)’s
directive that a court must dismiss an action if it “fails to state a claim on which relief
may be granted.” See Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir.
2011) (“[T]he dismissal of a civil rights suit for damages based on prematurity under
Heck is for failure to state a claim.”). Thus, our review is de novo. See Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (applying de novo review to dismissal
of IFP complaint for failure to state a claim under § 1915(e)(2)(B)(ii)). We afford a
3 liberal construction to Kilman’s pro se filings, but we may not act as his advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
In applying Heck, the district court relied on our unpublished decision, Kailey
v. Ritter, 500 F. App’x 766 (10th Cir. 2012). In Kailey, we held that Heck barred a
§ 1983 claim that Colorado prison officials violated a prisoner’s constitutional rights
under the First, Fifth, and Fourteenth Amendments when they failed to award him
earned-time credits. See id. at 767, 769. Kilman attempts to distinguish Kailey in
three ways: (1) Kailey was subject to discretionary parole, but Kilman was subject to
mandatory parole, so Kilman has a liberty interest in the credits he allegedly did not
receive; (2) Kailey’s action had technical and procedural issues that are lacking here;
and (3) Kailey argued that earned-time credits could not be withheld for bad
behavior, but Kilman raises no such argument. While these distinctions exist,
Kilman does not explain why they are material to the Heck analysis, and we see no
materiality. In Kailey, our application of Heck did not turn on any of the factual
distinctions Kilman highlights.
But regardless of Kailey, the Supreme Court has made clear that under its
precedent, including Heck, a writ of habeas corpus is the sole federal remedy in cases
where a state prisoner seeks any relief, damages or otherwise, that would “necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,
544 U.S. 74, 82 (2005). Kilman’s success in a § 1983 action for damages based on
the deprivation of good-time and earned-time credits would require a federal court to
determine that prison officials wrongly deprived him of those credits and held
4 Kilman longer than they should have. That would necessarily demonstrate that the
duration of Kilman’s confinement was invalid, even if his claim is viewed purely as a
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 19, 2020 _________________________________ Christopher M. Wolpert Clerk of Court TOBI KILMAN,
Plaintiff - Appellant,
v. No. 19-1476 (D.C. No. 1:19-CV-02265-LTB-GPG) DEAN WILLIAMS, Executive Director of (D. Colo.) the Colorado Department of Corrections; RICK RAEMISCH, Former Executive Director of the C.D.O.C.; JAMES RICKETS, Former Executive Director of the C.D.O.C.; TOM CLEMENTS, Former Executive Director of the C.D.O.C.; JOHN SUTHERS, Former Executive Director of the C.D.O.C.; JOE ORTIZ, Former Executive Director of the C.D.O.C.; ARISTEDES ZAVARES, Former Executive Director of the C.D.O.C.; FRANK GUNTER, Former Executive Director of the C.D.O.C.; WALTER KAUTZKY, Former Executive Director of the C.D.O.C. and unnamed former executive director of the C.D.O.C. Circa 1990-2019,
Defendants - Appellees. _________________________________
ORDER AND JUDGMENT *
* 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. _________________________________
Before TYMKOVICH, Chief Judge, HOLMES and MORITZ, Circuit Judges. _________________________________
Tobi Kilman appeals pro se from the district court’s judgment dismissing his
42 U.S.C. § 1983 action. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Kilman was a Colorado state prisoner at four different times between 1997 and
2017. In his complaint in this action, filed after his 2017 release, he alleged that he
was deprived of 56 months of statutory good-time and earned-time credits. He
asserted that this deprivation violated his rights under the Fifth, Eighth, and
Fourteenth Amendments. He sought damages against the current and former
Executive Directors of the Colorado Department of Corrections (CDOC) in their
individual capacities. His theory was that beginning in 1990, Executive Director
Kautzky implemented a policy of improperly awarding good-time and earned-time
credits, and successive Executive Directors have continued the policy.
After granting Kilman leave to proceed in forma pauperis (IFP), a magistrate
judge screened the complaint and ordered Kilman to show cause why the district
court should not dismiss it. Kilman responded. The magistrate judge then issued a
report and recommendation that the action should be dismissed pursuant to Heck v.
Humphrey, 512 U.S. 477 (1994). Under Heck, if “a judgment in favor of [a state
prisoner] would necessarily imply the invalidity of his conviction or sentence,” a
district court must dismiss a § 1983 action “unless the plaintiff can demonstrate that
2 the conviction or sentence has already been invalidated.” Id. at 487. In the
alternative, the magistrate judge recommended dismissing the complaint as legally
frivolous under 28 U.S.C. § 1915(e)(2)(B)(i) for failure to allege facts showing either
a constitutional violation or personal participation by any of the named defendants.
Kilman filed timely objections to the magistrate judge’s recommendation. The
district court accepted and adopted the recommendation and dismissed the action for
the reasons stated in the recommendation. Kilman appeals.
II. Discussion
Kilman primarily argues that Heck does not apply to his action because he did
not seek to invalidate either his convictions or his sentences but only the manner in
which his sentences were imposed. We disagree and therefore affirm the district
court’s dismissal based on Heck. Consequently, we need not reach Kilman’s other
arguments.
Because the district court dismissed Kilman’s action as part of the IFP
screening process, we construe its Heck dismissal as one under § 1915(e)(2)(B)(ii)’s
directive that a court must dismiss an action if it “fails to state a claim on which relief
may be granted.” See Smith v. Veterans Admin., 636 F.3d 1306, 1312 (10th Cir.
2011) (“[T]he dismissal of a civil rights suit for damages based on prematurity under
Heck is for failure to state a claim.”). Thus, our review is de novo. See Kay v.
Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007) (applying de novo review to dismissal
of IFP complaint for failure to state a claim under § 1915(e)(2)(B)(ii)). We afford a
3 liberal construction to Kilman’s pro se filings, but we may not act as his advocate.
See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
In applying Heck, the district court relied on our unpublished decision, Kailey
v. Ritter, 500 F. App’x 766 (10th Cir. 2012). In Kailey, we held that Heck barred a
§ 1983 claim that Colorado prison officials violated a prisoner’s constitutional rights
under the First, Fifth, and Fourteenth Amendments when they failed to award him
earned-time credits. See id. at 767, 769. Kilman attempts to distinguish Kailey in
three ways: (1) Kailey was subject to discretionary parole, but Kilman was subject to
mandatory parole, so Kilman has a liberty interest in the credits he allegedly did not
receive; (2) Kailey’s action had technical and procedural issues that are lacking here;
and (3) Kailey argued that earned-time credits could not be withheld for bad
behavior, but Kilman raises no such argument. While these distinctions exist,
Kilman does not explain why they are material to the Heck analysis, and we see no
materiality. In Kailey, our application of Heck did not turn on any of the factual
distinctions Kilman highlights.
But regardless of Kailey, the Supreme Court has made clear that under its
precedent, including Heck, a writ of habeas corpus is the sole federal remedy in cases
where a state prisoner seeks any relief, damages or otherwise, that would “necessarily
demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson,
544 U.S. 74, 82 (2005). Kilman’s success in a § 1983 action for damages based on
the deprivation of good-time and earned-time credits would require a federal court to
determine that prison officials wrongly deprived him of those credits and held
4 Kilman longer than they should have. That would necessarily demonstrate that the
duration of Kilman’s confinement was invalid, even if his claim is viewed purely as a
due process challenge to CDOC’s allegedly wrongful procedure for computing
credits. See Edwards v. Balisok, 520 U.S. 641, 646 (1997) (applying Heck to
prisoner’s § 1983 suit that, if successful on procedural challenge, would imply the
invalidity of the deprivation of good-time credits). Accordingly, to obtain federal
relief, Kilman had to pursue a writ of habeas corpus.
As the district court noted, Heck does not apply when a plaintiff has no
available habeas remedy, but the plaintiff must show that the lack of a habeas remedy
is “through no lack of diligence on his part.” Cohen v. Longshore, 621 F.3d 1311,
1317 (10th Cir. 2010). The only statement in Kilman’s appellate brief that could be
construed as relevant to the Cohen exception is his claim that he was simply unaware
of the CDOC’s “corrupt time-computation practices until he had already [been]
discharged.” Aplt. Br. at 4. His lack of awareness, however, shows nothing more
than a lack of diligence in filing any habeas petitions during his incarcerations. See
Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that
ignorance of the law, even for an incarcerated pro se petitioner, generally does not
excuse prompt filing.” (internal quotation marks omitted)). Kilman, therefore, has
not shown that Cohen’s exception to Heck applies.
III. Conclusion
The district court’s judgment is affirmed. We grant Kilman’s motion to
proceed IFP on appeal and remind him of his obligation to continue making partial
5 payments until the appellate filing and docketing fees are paid in full. See 28 U.S.C.
§ 1915(a)(1) (excusing only “prepayment of fees”); id. § 1915(b)(1) (requiring
prisoners to make partial payments of filing fees). 1
Entered for the Court Per Curiam
1 Section 1915(b)(1)’s partial-payment fee provisions apply to Kilman because at the time he filed this appeal, he was a pretrial detainee at a Colorado county detention center. 6