Morris v. CDOC

• Court: Colorado Court of Appeals
• Decided: April 17, 2025
• Docket: 24CA0437
• Status: Unpublished

Opinion

24CA0437 Morris v CDOC 04-17-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0437 Crowley County District Court No. 21CV15 Honorable Samuel Scott Vigil, Judge

John Edward Morris,

Plaintiff-Appellant,

v.

Moses ‘Andre’ Stancil, Executive Director, Colorado Department of Corrections; August Bauby, Manager, Department of Corrections Time/Release Operations; Barry Goodrich, Warden, Crowley County Correctional Facility; Eddie Tenario, Case Manager, Crowley County Correctional Facility; George Teneff, Case Manager, Crowley County Correctional Facility; Mathew Cook, Case Manager, Crowley County Correctional Facility,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE BERNARD* Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 17, 2025

John Edward Morris, Pro Se

Philip J. Weiser, Attorney General, Rebekah Ryan, Senior Assistant Attorney General, Denver, Colorado, for Defendants-Appellees Moses ‘Andre’ Stancil and August Bauby

Hall & Evans, L.L.C., Andrew D. Ringel, Lynn R. Kuznitz, Denver, Colorado, for Defendants-Appellees Barry Goodrich, Eddie Tenario, George Teneff, and Matthew Cook *Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 The plaintiff, John Edward Morris, is an inmate in the custody

of the Colorado Department of Corrections, which we shall call “the

department.” The plaintiff appeals the district court’s judgment

that dismissed his lawsuit seeking mandamus and declaratory relief

under C.R.C.P. 106(a)(2) and C.R.C.P. 57. We affirm.

I. Background

¶2 The plaintiff has two convictions relevant to this appeal. In

Texas, he was convicted of aggravated assault of a police officer with

a deadly weapon. He was sentenced to thirty years in prison

beginning on April 12, 2007. In Colorado, he was convicted of

aggravated robbery. He was sentenced to twenty-six years in

prison, to be served concurrently with the Texas sentence,

beginning on October 6, 2008.

¶3 In 2019, the plaintiff was paroled from his sentence in Texas,

and his custody was transferred to the department. He was initially

assigned to Crowley County Correctional Facility, a private prison

that operates under a contract with department.

¶4 Upon his transfer, the department calculated his parole

eligibility date for his Colorado conviction. The department deemed

his Texas conviction to be a crime of violence under section 18-1.3-

1 406, C.R.S. 2024. As a result, the department determined that,

under section 17-22.5-403(2)(a), C.R.S. 2024, he was required to

serve 75% of his Colorado sentence, which would make him parole

eligible on January 24, 2026.

¶5 Shortly after his transfer from Texas, the plaintiff filed the

lawsuit in this case. The complaint named several defendants,

which fell into two groups: employees of the private prison and

employees of the department. As is relevant to our analysis, the

complaint consisted of two claims: (1) the private prison and the

department refused to perform the statutorily required review of his

performance record from his previous incarceration in Texas for

earned time credit; and (2) the private prison and the department

improperly calculated his parole eligibility date.

¶6 In response, the private prison filed a motion to dismiss this

case, relying on C.R.C.P. 12(b)(5). The prison argued that, under

section 17-22.5-405, C.R.S. 2024, the department, not the prison,

was responsible for resolving the plaintiff’s claims. The magistrate

hearing the case agreed and granted the prison’s motion to dismiss.

¶7 The department also filed a motion to dismiss under C.R.C.P.

12(b)(5), or in the alternative, a motion for summary judgment

2 under C.R.C.P. 56. The department asserted that it had conducted

the required earned time review, finding that the plaintiff was not

eligible for any additional earned time, and that his parole eligibility

date had been properly calculated. In support of these assertions,

the department included an affidavit from the technician

responsible for conducting earned time reviews.

¶8 In ruling on the department’s motion, the magistrate found

that the plaintiff was only eligible for, but not entitled to, earned

time credit. The magistrate also determined that the department

had correctly calculated his parole eligibility date. As a result, the

magistrate decided that the plaintiff had not shown that he had a

clear right to relief, so the magistrate granted the department’s

motion to dismiss the complaint.

¶9 The plaintiff asked the district court to review the magistrate’s

decision. The court adopted the magistrate’s reasoning, and it

affirmed the magistrate’s order.

II. Analysis

¶ 10 The plaintiff contends that (1) he has demonstrated that the

private prison and the department must “perform affirmative

actions” in accordance with the earned time and parole eligibility

3 statutes and administrative regulations; and (2) the magistrate

committed two procedural errors — namely, by granting the

prison’s motion to extend a deadline and by denying his request to

amend the complaint.

¶ 11 Because the plaintiff is pro se, “we liberally construe his filings

while applying the same law and procedural rules applicable to a

party represented by counsel.” Gandy v. Williams, 2019 COA 118,

¶ 8. Accordingly, we seek to effectuate the substance, rather than

the form, of his pleadings. See People v. Cali, 2020 CO 20, ¶ 34.

We will not, however, rewrite his pleadings or act as an advocate on

his behalf. Id.

¶ 12 We conclude that the plaintiff’s claim against the private

prison is moot, his claims against the department were properly

dismissed, and his remaining claims were not preserved for

appellate review.

A. Claims Against the Private Prison

1. Legal Principles and Standard of Review

¶ 13 An appellate court will decline to render an opinion on the

merits of an appeal when a case is moot. See People v. Abdul, 935

P.2d 4, 6 (Colo. 1997). An appeal is moot when “our decision will

4 have no practical effect on an actual or existing controversy.”

People v. Garcia, 2014 COA 85, ¶ 9; see also People v. Devorss, 277

P.3d 829, 833 (Colo. App. 2011).

¶ 14 Colorado recognizes two exceptions to the mootness doctrine.

First, a case will not be dismissed if it represents a controversy

capable of repetition yet evading review. Taxpayers Against

Congestion v. Reg’l Transp. Dist., 140 P.3d 343, 346 (Colo. App.

2006). Second, a court may consider issues involving a question of

great public importance or an allegedly recurring constitutional

violation. Id.

¶ 15 Whether an appeal is moot is a question of law that we review

de novo. People ex rel. Rein v. Meagher, 2020 CO 56, ¶ 14.

2. Application

¶ 16 As we interpret his argument, the plaintiff contends that the

magistrate erred in dismissing the private prison as a defendant in

this case. He asserts that the prison’s case manager had an

obligation under the relevant statutes and administrative rules to

forward “any documentation” pertaining to his earned time credits

from his incarceration in Texas and to his parole eligibility date to

the department.

5 ¶ 17 But, assuming for the purposes of argument that such an

obligation exists, the record shows, and the plaintiff admits, that

the private prison forwarded the documents to the department. In

his complaint, the plaintiff described numerous delays and

challenges that he encountered when he attempted to deliver the

documents to the department for review. At various points in the

proceedings and in his opening brief on appeal, however, he

concedes that the prison sent the documents to the department.

The technician responsible for conducting the earned time review at

the department likewise acknowledged that the department had

received the documents. We therefore conclude that, because the

plaintiff has received this part of the relief that he requested, any

judgment in his favor on this issue would have no practical effect

on the controversy.

¶ 18 Still, the plaintiff urges us to consider his earned time

contention under both exceptions to the mootness doctrine because

it will “have an impact on [department] case managers and likely

result in a policy and/or practice change concerning situations

similar to [the plaintiff’s].” We disagree because

6 • under the circumstances of this case, any opinion that

we would write on this issue would be advisory, and we

must avoid authoring advisory opinions, see People in

Interest of Vivekanathan, 2013 COA 143M, ¶ 14;

• while this issue may be capable of repetition, it will not

evade review because an inmate whose documents have

not been forwarded from a private prison to the

department may raise the issue in an appeal; and

• while we acknowledge the importance of this issue to the

plaintiff, he has not shown that this issue is indicative of

a recurring constitutional violation or that it is of great

public importance.

B. Claims Against the Department

¶ 19 The plaintiff contends that the court erred in dismissing his

claims against the department because he had asserted a clear

right to review of his earned time credits and to recalculation of his

parole eligibility date. We disagree.

¶ 20 Relief under C.R.C.P. 106(a)(2) is an extraordinary remedy to

compel the performance of a nondiscretionary ministerial duty.

7 Jefferson Cnty. Educ. Ass’n v. Jefferson Cnty. Sch. Dist. R-1, 2016

COA 10, ¶ 10. “The burden on [a] plaintiff is heavy. [A] plaintiff

must show that (1) he has a clear right to the relief he seeks; (2) the

defendant has a clear duty to perform the act requested; and (3) no

other remedy is available.” Owens v. Williams, 2020 COA 177,

¶ 15, rev’d on other grounds sub nom. Owens v. Carlson, 2022 CO

33; see also C.R.C.P. 106(a)(2).

¶ 21 Under C.R.C.P. 12(b)(5), the court may grant a motion to

dismiss a complaint if it does not state a claim upon which relief

can be granted. To survive such a motion, a plaintiff must plead

sufficient facts that suggest plausible grounds to support a claim

for relief. See Warne v. Hall, 2016 CO 50, ¶ 24; Froid v. Zacheis,

2021 COA 74, ¶ 29. In evaluating the motion, a district court must

accept all factual allegations in the complaint as true and view them

in the light most favorable to the plaintiff. Norton v. Rocky Mountain

Planned Parenthood, Inc., 2018 CO 3, ¶ 7. The court, however, is

not required to accept bare legal conclusions as true. Id.

¶ 22 We review de novo a district court’s decision to dismiss a

complaint under C.R.C.P. 12(b)(5), applying the same standards

that the district court must use. Id.

8 2. Earned Time

¶ 23 The plaintiff contends that he asserted a clear right to review

of his earned time from the thirteen years when he was incarcerated

in Texas before he was transferred to the department.

¶ 24 Although we agree that the plaintiff is entitled to a review of

his earned time credits, see § 17-22.5-405(3); People v. Frank, 30

P.3d 664, 666 (Colo. App. 2000), the department has already given

the plaintiff the review for which he asked. According to the

department technician’s affidavit, she received and reviewed some

documents pertaining to the plaintiff’s incarceration in Texas. But

she determined that the documents were “not adequate to

determine [the plaintiff’s] institutional conduct during his

incarceration in [Texas].” The plaintiff acknowledges the

technician’s affidavit, and he does not contend that her review of

the documents was insufficient.

¶ 25 Instead, he makes a conclusory statement that the review

should have had a different outcome. But he did not demonstrate a

clear right to a different outcome.

¶ 26 To demonstrate a clear right to the requested relief, that relief

must be the result of a nondiscretionary ministerial duty. Jefferson

9 Cnty. Educ. Ass’n, ¶ 10; see also Verrier v. Colo. Dep’t of Corr., 77

P.3d 875, 877-78 (Colo. App. 2003). As is pertinent to our review,

the award or withdrawal of earned time credits is within the

department’s discretion. § 17-22.5-405(1). Although the

department is required to conduct an earned time review, which it

did in this case, it is not required to award the plaintiff earned time

credit based on his Texas sentence. See Verrier, 77 P.3d at 878.

We conclude that the record therefore supports the court’s decision

to dismiss the plaintiff’s earned time credit claim.

3. Parole Eligibility Date

¶ 27 The plaintiff contends that the department incorrectly

calculated his parole eligibility date. He submits that the

department “ignore[d]” four years that he was incarcerated in Texas

from July 6, 2004 (the date of the offense in Texas) to October 6,

2008 (the effective date of his sentence for his Colorado conviction).

He asserts that, because the sentences run concurrently and

should be treated as “one continuous sentence” under section 17-

22.5-101, C.R.S. 2024, the department should have credited him

this time in its calculation of his parole eligibility date. But,

because he is requesting credit for time he spent incarcerated

10 before the effective date of his Colorado sentence, we interpret his

contention as asking for presentence confinement credit for time

served in Texas before his Colorado sentence began.

¶ 28 Under Colorado law, an inmate is entitled to presentence

confinement credit for the entire period of confinement on that

crime before sentencing, provided there is a substantial nexus

between the confinement and the charge. § 18-1.3-405, C.R.S.

2024. “[C]redit is to be given only where the presentence

confinement is caused by the charge — or ‘said offense’ — on which

the defendant is being sentenced . . . .” People v. Torrez, 2017 CO

91, ¶ 3, overruled by Russell v. People, 2020 CO 37. If the

confinement was due to other charges or reasons, then the inmate

is not entitled to presentence confinement credit for that period.

People v. Fransua, 2016 COA 79, ¶ 12, aff’d, 2019 CO 96.

¶ 29 Assuming, for the purposes of argument, that the plaintiff

preserved this contention, we conclude that he is asking for

something that Colorado’s law does not give him: a right to

presentence confinement credit for time that he spent in Texas

before the effective date of when his Colorado sentence began.

Because his Colorado sentence started on October 6, 2008, he was

11 entitled to any time he spent incarcerated before that date based on

that offense. Indeed, the department’s parole eligibility calculation

determined that he had received ninety days of credit for his

presentence confinement in this case. Any additional time he spent

incarcerated in Texas, particularly before Colorado lodged a

detainer against him because of his Colorado sentence, was not a

result of the Colorado case. See id.

C. Assertion of Other Procedural Errors

¶ 30 The plaintiff asserts that the magistrate erred by (1) granting

the private prison’s motion for an extension of time based on

excusable neglect, and (2) denying his motion to amend and to

supplement his complaint under C.R.C.P. 15(a) and (d). But “[a]

petition for district court review of a magistrate’s order is a

prerequisite to an appeal.” People in Interest of K.L-P., 148 P.3d

402, 403 (Colo. App. 2006). The plaintiff did not raise these claims

to the district court. As a result, they are unpreserved, and we

decline to address them. Id.

¶ 31 The judgment is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.