Boutwell v. Keating

• Citation: 399 F.3d 1203
• Decision Date: 23 February 2005
• Docket Number: No. 03-6278.,03-6278.
• Parties: John Kenneth BOUTWELL, Plaintiff-Appellant, v. Frank KEATING, individually and in his official capacity as Governor of the State of Oklahoma; H.N. "Sonny" Scott; Larry Fields, individually and in his former capacity as Director of the Oklahoma Department of Corrections; Drew Edmondson, Attorney General of the State of Oklahoma; James Saffle, individually and in his official capacity as Director of the Oklahoma Department of Corrections; Steven Hargett, individually and in his former capacity as Warden of Joseph Harp Correctional Center; Susan Bussey; Currie Ballard; Patrick J. Morgan; Flint Breckinridge; Stephanie Shapelle, and their successors individually and in their official capacities as members of the Oklahoma Pardon and Parole Board, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

399 F.3d 1203

John Kenneth BOUTWELL, Plaintiff-Appellant, v. Frank KEATING, individually and in his official capacity as Governor of the State of Oklahoma; H.N. "Sonny" Scott; Larry Fields, individually and in his former capacity as Director of the Oklahoma Department of Corrections; Drew Edmondson, Attorney

General of the State of Oklahoma; James Saffle, individually and in his official capacity as Director of the Oklahoma Department of Corrections; Steven Hargett, individually and in his former capacity as Warden of Joseph Harp Correctional Center; Susan Bussey; Currie Ballard; Patrick J. Morgan; Flint Breckinridge; Stephanie Shapelle, and their successors individually and in their official capacities as members of the Oklahoma Pardon and Parole Board, Defendants-Appellees.

No. 03-6278.

United States Court of Appeals, Tenth Circuit.

February 23, 2005.

COPYRIGHT MATERIAL OMITTED

Micheal Salem, Salem Law Offices, Norman, OK, for the Plaintiff-Appellant.

J. Kevin Behrens, Assistant Attorney General (Charles K. Babb, Assistant Attorney General, on the brief), Office of the Attorney General, Oklahoma City, OK, for the Defendants-Appellees.

Before TACHA, Chief Circuit Judge, KELLY, and McCONNELL, Circuit Judges.

TACHA, Chief Circuit Judge.

Plaintiff-Appellant John Kenneth Boutwell was denied placement into Oklahoma's Pre-Parole Conditional Supervision ("PPCS") program. Alleging that this denial violated his constitutional rights, Mr. Boutwell seeks to challenge the state of Oklahoma's actions under 42 U.S.C. § 1983 or alternatively by petitioning for a writ of habeas corpus under 28 U.S.C. § 2254. The District Court dismissed Mr. Boutwell's action, finding that his claims were not cognizable under § 1983 and that his failure to allege facts sufficient to give rise to a constitutional violation similarly required dismissing his habeas petition. On appeal, Mr. Boutwell contends that the District Court erred in both regards. We take jurisdiction under 28 U.S.C. §§ 1291 and 2253, AFFIRM the ruling that Mr. Boutwell's claims are not cognizable under § 1983, GRANT a certificate of appealability, and AFFIRM the dismissal of Mr. Boutwell's habeas petition.

I. BACKGROUND

Mr. Boutwell was convicted of first degree murder in 1978. His sentence was later commuted from death to life with the possibility of parole. This appeal, however, contests neither crime nor sentence. Instead, the appeal arises out of Mr. Boutwell's recommendation for, and subsequent denial of, PPCS placement.

PPCS was a program established under Oklahoma law.¹ Under that scheme, after a prisoner met certain eligibility requirements, the Oklahoma Pardon and Parole Board ("Parole Board") determined whether to recommend to the Department of Corrections ("DOC") that the prisoner be placed into PPCS. Such placement released a prisoner before the expiration of his sentence and allowed him to maintain a residence and job. In January 1995, the Parole Board voted to recommend Mr. Boutwell for entry into PPCS.

In response to this recommendation, Defendants Governor Frank Keating and Attorney General Drew Edmondson wrote letters to the Director of the DOC, Defendant Larry Fields. These letters requested that Director Fields delay Mr. Boutwell's admission into PPCS until newly-appointed Parole Board members could reconsider the case. Thereafter, Director Fields denied Mr. Boutwell's PPCS placement, citing the existence of "aggravating factors." In March 1995, the new Parole Board voted against recommending Mr. Boutwell for PPCS.

Mr. Boutwell originally initiated this action in November 1995. He brought suit under 42 U.S.C. § 1983, alleging that his denial of PPCS placement violated his constitutional rights, and sought placement in the PPCS program. The complaint was later amended to state that if the District Court determined that the action could not be maintained under § 1983, it should be construed as a habeas petition and stayed pending exhaustion in state court. In May 1999, the District Court adopted the Magistrate Judge's findings.

In November 2001, Mr. Boutwell filed an application to reopen these proceedings. He argued that he had exhausted all available state court remedies, and therefore wished to file a second amended complaint. His second amended complaint again sought relief under § 1983 and, in the alternative, a writ of habeas corpus. The District Court reopened the matter and referred it back to the Magistrate Judge. Before the Magistrate Judge, the Defendants moved to dismiss the § 1983 claims under Fed.R.Civ.P. 12(b)(6) and argued that the complaint should be construed as a habeas petition.

The Magistrate Judge issued a Report and Recommendation stating that because Mr. Boutwell sought placement into PPCS his claims were not cognizable under § 1983, but instead must be brought under habeas. The Magistrate Judge recommended that the District Court dismiss the § 1983 claims and treat the complaint as a habeas petition. The Magistrate Judge further recommended that, because the factual allegations — even if true — did not state a constitutional violation, Mr. Boutwell's petition for habeas corpus should be summarily dismissed under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts ("Section 2254 Rules"). The District Court issued an Order adopting the Magistrate Judge's report, thereby dismissing Mr. Boutwell's § 1983 claims and his habeas petition. Mr. Boutwell timely appeals this decision.

On appeal, Mr. Boutwell presents two arguments. First, he argues that the District Court erred in determining that his suit was not cognizable under § 1983. Second, he argues that if his claims are properly construed as a habeas petition, we should grant a certificate of appealability and consider the merits of his claims. We consider these two arguments below.

II. SECTION 1983 RELIEF

A. Standard of Review

The District Court dismissed Mr. Boutwell's § 1983 claims for failing to state a claim on which relief can be granted. We review a dismissal under Rule 12(b)(6) de novo and apply the same standard as the District Court. County of Santa Fe v. Public Serv. Co. of New Mexico, 311 F.3d 1031, 1034 (10th Cir.2002).

B. Availability of Remedy Under § 1983

Section 1983 permits suits against persons who, acting under the color of state law, deprive a United States citizen of his constitutional rights. See 42 U.S.C. § 1983. While Mr. Boutwell's claims fit this description, the Supreme Court has recognized that, despite the literal applicability of § 1983, some claims brought by prisoners are not cognizable under this statute. See Heck v. Humphrey, 512 U.S. 477, 481-82, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Instead, for some claims that fall within the broad language of § 1983, a writ of habeas corpus is the exclusive federal remedy. Id.

In Preiser v. Rodriguez, 411 U.S. 475, 499, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court recognized that its earlier decisions "establish that a § 1983 action is a proper remedy for a state prisoner who is making a constitutional challenge to the conditions of his prison life...." The Court, however, also noted that "when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Id. at 500, 93 S.Ct. 1827.

As such, Preiser announced the Supreme Court's approach to determining whether a state prisoner can bring a claim under § 1983: A prisoner may use § 1983 to challenge the conditions of his confinement, but habeas corpus is the only avenue for a challenge to the fact or duration of confinement, at least when the remedy requested would result in the prisoner's immediate or speedier release from that confinement. Therefore, to determine whether Mr. Boutwell may proceed under § 1983, we must first decide whether Mr. Boutwell's claim — namely, that he was unconstitutionally denied placement in PPCS — is properly viewed as challenging the conditions of his confinement or the fact or duration of his confinement.

Because a prisoner's claim necessarily challenges the fact or duration of confinement when the remedy sought is the immediate or speedier release from confinement, such a claim must be brought under habeas. But habeas is not limited to those claims that, if successful, would lead to the prisoner's unconditional release from confinement. In a challenge to a parole denial, we recently held that an inmate's "request for an injunction that would effect his immediate or imminent release on parole ... [is] not cognizable under § 1983 and must instead be brought under [habeas]." Reed v. McKune, 298 F.3d 946, 953 (10th Cir.2002) (emphasis added). Therefore, if Mr. Boutwell's request for immediate placement into Oklahoma's pre-parole program is akin to a request to be released on parole, Mr. Boutwell must proceed under habeas rather than § 1983.

In light of Reed, Mr. Boutwell argues that PPCS placement is distinguishable from parole. He contends that PPCS participants are still serving their sentences while parolees have their sentences suspended. He characterizes his suit as "bring[ing] a challenge to the conditions of [his] confinement, i.e., whether they should be in a medium security facility or under the minimal security provisions of PPCS." Because a challenge to a transfer from one security level to another or from one prison to another is cognizable under § 1983, treating PPCS as minimum-security confinement rather than release on parole would permit Mr. Boutwell's suit to proceed under § 1983. See Meachum v. Fano, 427 U.S. 215, 218, 222-23, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976) (permitting a § 1983 suit by prisoners challenging a transfer from a prison with both medium- and maximum-security facilities to an entirely maximum-security prison with less...