Griess v. State of Colo., Civ. A. No. 84-K-1314.

• Decision Date: 26 December 1985
• Docket Number: Civ. A. No. 84-K-1314.
• Parties: Dale GRIESS, Plaintiff, v. The STATE OF COLORADO, the Colorado Department of Corrections, Chase Riveland, Mark McGoff, James Brittain, James G. Ricketts, Gene Tollis, Edward Buckingham, John Perko, and Lena Dice, Defendants.
• Court: U.S. District Court — District of Colorado

624 F. Supp. 450

Dale GRIESS, Plaintiff, v. The STATE OF COLORADO, the Colorado Department of Corrections, Chase Riveland, Mark McGoff, James Brittain, James G. Ricketts, Gene Tollis, Edward Buckingham, John Perko, and Lena Dice, Defendants.

Civ. A. No. 84-K-1314.

United States District Court, D. Colorado.

December 26, 1985.

James D. Evans, Aurora, Colo., for plaintiff.

Gordon L. Vaughan, Colorado Springs, Colo., John Daniel Dailey, Asst. Atty. Gen., Denver, Colo., for defendants.

ORDER OF DISMISSAL

KANE, District Judge.

Plaintiff, Dale Griess, is a former inmate of the Colorado Department of Corrections. The defendants, in addition to the State of Colorado and its department of corrections, are Chase Riveland, current director of the department of corrections; James G. Ricketts, director of the department of corrections during the periods of the plaintiff's incarceration; Mark McGoff, superintendent of the Fremont Correctional Facility in Canon City, Colorado; James Brittain, superintendent of the Territorial Correctional Facility in Canon City, Colorado; Gene Tollis, director of offender records for the department of corrections; Edward Buckingham, director of offender services for the department of corrections; John Perko, executive director of the department of corrections and Lena Dice, administrative officer of the Canon Correctional Facility for the department of corrections. The individual defendants are, or were at all pertinent times, employees of the State of Colorado.

This action is brought under 42 U.S.C. §§ 1981 and 1983.¹ Plaintiff claims that defendants deprived him of equal protection and due process rights, secured by the Fifth and Fourteenth Amendments to the Constitution of the United States. Plaintiff also appends two state law claims: 1) false imprisonment and 2) failure to discharge statutory obligations. All three of plaintiff's claims for relief arise from the defendant's alleged failure to take into account pre-sentence time served in computing "good time" in accordance with Colo. Rev.Stat. § 17-22.5-101 (1973).² Jurisdiction is exercised under 28 U.S.C. §§ 1331 and 1343. Venue is proper pursuant to 28 U.S.C. §§ 1391 and 1392.

This matter is now before me on plaintiff's motion for summary judgment. Plaintiff asserts that he was unlawfully detained for a period of five and one half months by virtue of the retroactive application of People v. Chavez, 659 P.2d 1381 (Colo.1983). Defendants, asserting immunity as a defense, have moved for dismissal or, in the alternative, summary judgment. Since defendants have submitted affidavits in support of their motion, I treat their motion as one for summary judgment pursuant to Fed.R.Civ.P. 56(c). For the reasons set forth below, plaintiff's motion for partial summary judgment is denied. Defendants' motion for summary judgment is granted.

FACTUAL BACKGROUND

Plaintiff was arrested on August 18, 1980. He was incarcerated in Adams County Jail from that time until his sentencing on February 10, 1981; a period of 177 days. On February 10, 1981 plaintiff was sentenced to three years imprisonment followed by one year of parole. At the time of the sentencing, plaintiff was credited with 177 days of presentence incarceration. He was also awarded one year, three months and one day good time, and 15 days earned time.³ Plaintiff eventually served one year, two months and 16 days in the custody of the Colorado department of corrections.

Plaintiff was released on April 26, 1982 to serve a one year term of parole. On January 25, 1983, plaintiff was re-incarcerated as a parole violator. He was released from that incarceration on March 31, 1983.

On February 22, 1983 the Colorado Supreme Court decided People v. Chavez, 659 P.2d 1381 (Colo.1983). Rehearing was denied on March 28, 1983. Chavez held that presentence time served must be included in the computation of good time pursuant to Colo.Rev.Stat. § 17-22.5-101 (1973). That is, a prisoner must be given good time credits, potentially reducing time served by as much as half, for his pre-sentence as well as post sentence time served. Prior to Chavez, as illustrated by the defendants' treatment of plaintiff's good time, pre-sentence time served was deducted from the sentence but not subjected to good time reduction.

Had plaintiff been given the maximum good time credit for the pre-sentence time served in county jail, his mandatory release date would have been January 28, 1982. Had plaintiff been released on January 28, 1982, his one year parole would have expired, and he would have had to have been released on January 28, 1983.⁴

DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Defendants assert in their motion for summary judgment that the state, its department of corrections and the individual defendants are absolutely immune from this suit. Defendants also argue, in the alternative, that the individual named defendants are immune by virtue of the doctrine of qualified good faith immunity.

The Eleventh Amendment of the United States Constitution provides:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.

In Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Supreme Court held that the Eleventh Amendment precludes suit against an unconsenting state even brought by a citizen of that state.

A. State Immunity

A state's Eleventh Amendment immunity to suit is, however, not absolute. A state may be sued if it has either consented to suit or Congress has abrogated its sovereign immunity.

1. Consent

The Supreme Court has unequivocally held that:

There can be no doubt ... that suit against the state and its Board of Corrections is barred by the Eleventh Amendment, unless Alabama has consented to the filing of such suit.

Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3057, 57 L.Ed.2d 1114, 1116 (1978).

However, a state's waiver of its Eleventh Amendment immunity is not easily inferred:

Constructive consent is not a doctrine commonly associated with the surrender of constitutional rights, and we see no place for it here. In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated "by the most express language or by such overwhelming implications from the text as will leave no room for any other reasonable construction" (citation omitted).

Edelman v. Jordan, 415 U.S. 651, 652, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662, 678 (1974).

Plaintiff asserts that the state, through the enactment of Colo.Rev.Stat. §§ 24-10-104 and 106 (1973),⁵ waived whatever rights to immunity it may have in this case. Section 106(b) provides for the waiver of immunity to suit in those cases arising out of the operation of any correctional facility or jail. Section 104 provides that if a public entity has provided insurance coverage for any act or omission by an employee, then such public entity shall be deemed to have waived any sovereign immunity defense which may arise. The proper construction of these statutory provisions is that the state waives immunity against suit only in its own courts. With reference to these provisions I have held that

... a state's waiver of its immunity against suit in its own courts does not constitute waiver of its eleventh amendment immunity against suit in federal court. Edelman v. Jordan, (citation ommitted)

Verner v. Colorado, 533 F.Supp. 1109, 1114 (D.Colo.1982), aff'd 716 F.2d 1352 (10th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2175, 80 L.Ed.2d 558 (1984). The state has not waived its Eleventh Amendment immunity.

2. Abrogation

Plaintiff contends that 42 U.S.C. § 1983, under which this case is brought, constitutes congressional abrogation of a state's Eleventh Amendment immunity. This contention is erroneous. For § 1983 to constitute congressional abrogation, I must find that Congress intended a state to be a "person" for purposes of that statute. I cannot do this. While in the past, I've expressed my belief that the Supreme Court's denial that a state is a "person" under § 1983 in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) and Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), was merely dicta, Friedman v. Weiner, 515 F.Supp. 563, 566 (D.Colo.1981), the 10th Circuit has concluded otherwise. I am bound to hold that a state is not a "person" for purposes of § 1983 and that, therefore, § 1983 does not constitute congressional abrogation of a state's Eleventh Amendment immunity. Garcia v. Board of Education of the Socorro Consolidated School District, 777 F.2d 1403, 1413-14 (10th Cir.1985). See also, Quern v. Jordan, 440 U.S. 332, 440, 99 S.Ct. 1139, 59 L.Ed.2d 358, 367 ("But unlike our Brother Brennan, we simply are unwilling to believe ... that Congress intended by the general language of § 1983 to override the traditional sovereign immunity of the States").

The State of Colorado and its department of corrections are immune from this suit under the protections afforded by the Eleventh Amendment.

B. Individual Defendants' Immunity

Defendants' claim that the individual defendants are immune from liability on two grounds: (1) derivative Eleventh Amendment immunity, and (2) good faith immunity. For the reasons set forth below, I hold that the individually named defendants have absolute derivative Eleventh Amendment immunity. Thus, I need not address their claim of qualified good faith immunity.

In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908), the Supreme

Court held that the Eleventh Amendment was no bar to a federal court action seeking to enjoin the Attorney General of Minnesota from enforcing a statute claimed to violate the Fourteenth Amendment of the federal constitution. The court reasoned that since the action was against an...