Hall v. Zavaras, 94CA1761

• Decision Date: 22 February 1996
• Docket Number: No. 94CA1761,94CA1761
• Citation: 916 P.2d 634
• Parties: James Edward HALL, Plaintiff-Appellant, v. Aristedes W. ZAVARAS, Executive Director, Colorado Department of Corrections; Ben Griego, Head of Classification for the Colorado Department of Corrections; Dennis Kleinsasser, Director of Correctional Programs; Margo Vaughan, Central Offender Management Specialist; Peggy Heil, Administrator of the Sex Offender Program at the Territorial Correctional Facility; Gloria Green, former member of the Sex Offender Treatment Team; Dr. Richard Moore, Mental Health Coordinator of the Denver Reception Diagnostic Center; Roger Allen, member of the Sex Offender Treatment Team; Robert Furlong, Warden of the Limon Correctional Facility; Sandi Hendricks, Mental Health Therapist at the Limon Correctional Facility; Linda Tornowski, Case Manager at the Limon Correctional Facility, Defendants-Appellees. . IV
• Court: Colorado Court of Appeals

Page 634

916 P.2d 634

James Edward HALL, Plaintiff-Appellant, v. Aristedes W. ZAVARAS, Executive Director, Colorado Department of Corrections; Ben Griego, Head of Classification for the Colorado Department of Corrections Dennis Kleinsasser, Director of Correctional Programs Margo Vaughan, Central Offender Management Specialist Peggy Heil, Administrator of the Sex Offender Program at the Territorial Correctional Facility; Gloria Green, former member of the Sex Offender Treatment Team; Dr. Richard Moore, Mental Health Coordinator of the Denver Reception Diagnostic Center; Roger Allen, member of the Sex Offender Treatment Team; Robert Furlong, Warden of the Limon Correctional Facility; Sandi Hendricks, Mental Health Therapist at the Limon Correctional Facility; Linda Tornowski, Case Manager at the Limon Correctional Facility Defendants-Appellees.

No. 94CA1761.

Colorado Court of Appeals, Div. IV.

Feb. 22, 1996.

As Modified on Denial of Rehearing

March 28, 1996.

Certiorari Denied October 15, 1996 (96SC285).

James Edward Hall, Pro Se.

Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, David A. Beckett, Special Assistant Attorney General, Denver, for Defendants-Appellees.

Opinion by Judge KAPELKE.

In this C.R.C.P. 106(a)(4) action, plaintiff, James Edward Hall, an inmate in the custody of the Colorado Department of Corrections (DOC), appeals from the judgment of the trial court dismissing his complaint against defendants, all of whom are employees or officials of the DOC. Plaintiff contends that defendants improperly denied him good time credits as a result of an unfounded allegation that he has refused to participate in a sex offender treatment program (SOTP). He also asserts a violation of his rights under the constitutional prohibition against ex post facto laws. We affirm.

In 1978, Hall was convicted of first degree sexual assault and second degree assault, and he is presently serving his sentence for those crimes. In 1991, his case manager informed him that, unless he participated in the SOTP, he would no longer be able to receive the maximum five days good time credit per month.

Later, Hall attempted to participate in the SOTP program, but was denied admission based on his failure to acknowledge that his sexually assaultive behavior was a problem he needed to address. Thereafter, he was awarded no more than two days good time credit per month.

In 1994, Hall initiated this action, and the DOC moved to dismiss for failure to state a claim. Hall failed to respond to the motion, and the trial court entered the judgment of dismissal here at issue.

I.

Hall contends that the DOC violated his due process rights by conditioning his right to obtain good time credit on his participation in SOTP. We disagree.

A state may not deprive an inmate of life, liberty, or property without due process of law. Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). However, an inmate does not have a liberty interest protected by the due process clause of the United States Constitution absent a showing of a legitimate claim of entitlement. Kentucky Department of Corrections v. Thompson, 490 U.S. 454, 109 S.Ct. 1904, 104 L.Ed.2d 506 (1989).

Further, an inmate has no constitutional right to good time credit. Wolff v. McDonnell, supra; People v. Turman, 659 P.2d 1368 (Colo.1983). However, state law may create an enforceable interest if substantive limits are placed on official discretion concerning the award of good time. See Wolff v. McDonnell, supra; Kentucky Department of Corrections v. Thompson, supra.

Section 17-22.5-201, C.R.S. (1986 Repl.Vol. 8A) governs the award of meritorious good time for inmates, such as Hall, who were convicted of crimes committed before July 1, 1979. That statute provides, in pertinent part:

The executive director or any of his designees may grant to any inmate confined in a correctional facility additional good time credit ... not to exceed five days per month for each calendar year remaining to be served, for the following reasons:

(a) Meritorious service by an inmate; or

(b) Outstanding performance of assigned tasks in correctional industries. (emphasis added)

By use of the word "may," the General Assembly indicated its intention to give the DOC discretion in the grant or denial of good time credit. See Renneke v. Kautzky, 782 P.2d 343 (Colo.1989). Thus, Hall has no legitimate claim of entitlement to the award of meritorious good time credits.

Hall further argues, however, that DOC Regulation 850-9 creates a right of which he was deprived without due process. We are not persuaded.

Regulation 850-9 is entitled "Program Participation" and states, in pertinent part:

Inmates may elect to refuse to participate in institutional programs and shall not be punished for this choice. (emphasis added)

A program is defined as "treatment, training, religious, education, and recreation."

Because the DOC's grant or denial of good time credit is wholly discretionary, we conclude that the decision to withhold or condition such credits does not constitute the imposition of additional punishment. See White v. People, 866 P.2d 1371 (Colo.1994) (parole board's refusal to grant parole to a sex offender who is unwilling to participate in a SOTP does not constitute additional punishment). We further conclude that the DOC did not act arbitrarily or abuse its statutory discretion by conditioning Hall's earning of meritorious time credits upon his participation in the SOTP. See White v. People, supra. Accordingly, we find no violation of Hall's due process rights in this regard.

II.

Hall also contends that DOC violated the constitutional prohibition against ex post facto laws by retroactively applying to him the statutory criteria of § 17-22.5-302(1), C.R.S (1986 Repl.Vol. 8A). Again, we disagree.

Both the Colorado and United States constitutions prohibit the imposition of punishment for an act that was not punishable at the time it was committed, as well as the imposition of additional punishment when no further offense has been committed. For a law to be ex post facto, it must be retroactive and must disadvantage the individual affected by it. Weaver v. Graham, 450 U.S. 24, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981); People v. District Court, 834 P.2d 181 (Colo.1992).

Of specific relevance here, a statute reducing the amount of non-discretionary good time credited against a prisoner's sentence is unconstitutional as applied to a prisoner whose crime was committed before the statute's enactment. Weaver v. Graham, supra.

As previously noted, § 17-22.5-201 governs the award of meritorious good time credit for inmates convicted of crimes committed before July 1, 1979. DOC Regulation 950-7 establishes criteria for the award of meritorious good time pursuant to § 17-22.5-201 and states, in pertinent part:

Case managers shall assess the progress of their clients and determine ... if his client has made substantial and consistent progress in the following...