Verrier v. Colorado Dept. of Corrections

• Decision Date: 31 July 2003
• Docket Number: No. 01CA2306., No. 01CA1803
• Citation: 77 P.3d 875
• Parties: Russ E. VERRIER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; John W. Suthers, Executive Director; Mary West, Deputy Director; Jerry Gasko, Deputy Director; and Edd C. Gillespie, Grievance Officer, Defendants-Appellees.
• Court: Colorado Court of Appeals

77 P.3d 875

Russ E. VERRIER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF CORRECTIONS; John W. Suthers, Executive Director; Mary West, Deputy Director; Jerry Gasko, Deputy Director; and Edd C. Gillespie, Grievance Officer, Defendants-Appellees.

Nos. 01CA1803, 01CA2306.

Colorado Court of Appeals, Div. IV.

July 31, 2003.

Russ E. Verrier, Pro Se.

Ken Salazar, Attorney General, Juliana M. Zolynas, Assistant Attorney General, Denver, Colorado, for Defendants-Appellees.

Opinion by Judge NIETO.

Plaintiff, Russ E. Verrier, appeals the dismissal of his complaint against defendants, Colorado Department of Corrections; John W. Suthers, Executive Director; Mary West, Deputy Director; Jerry Gasko, Deputy Director; and Edd C. Gillespie, Grievance Officer. We affirm.

Plaintiff, an inmate in the Huerfano County Correctional Center, submitted a series of grievances seeking review of the denial of earned time credit for his participation in two inmate vocational programs. Plaintiff argued that he was entitled to earned time credit pursuant to §§ 17-22.5-302(1.5)(a) and 17-22.5-405, C.R.S.2002. Defendants denied plaintiff's grievances, concluding that he was not eligible for earned time credit under Department of Corrections (DOC) policy because of his educational classification level and that he was not entitled to such credit under §§ 17-22.5-302(1.5)(a) and 17-22.5-405.

Plaintiff filed a complaint in the trial court seeking alternative relief pursuant to C.R.C.P. 106(a)(2) and (4). Under C.R.C.P. 106(a)(2), he sought an order compelling defendants to grant him earned time credit. Pursuant to C.R.C.P. 106(a)(4), he sought judicial review of the DOC's policy relating to earned time credit.

Defendants moved under C.R.C.P. 12(b)(5) to dismiss his complaint, and plaintiff failed to timely respond. The trial court dismissed plaintiff's complaint based on his failure to respond and based on "the authorities cited in the motion." Plaintiff appeals that ruling, as well as the trial court's subsequent denial of his motion for leave to file a response.

We reject plaintiff's contention that the trial court erred in dismissing his complaint.

A motion to dismiss pursuant to C.R.C.P. 12(b)(5) for failure to state a claim upon which relief can be granted serves as a test of the formal sufficiency of a plaintiff's complaint. Motions to dismiss are looked upon with disfavor and should not be granted unless it appears beyond a doubt that a plaintiff can prove no set of facts that would entitle the plaintiff to relief. Public Service Co. v. Van Wyk, 27 P.3d 377 (Colo.2001).

"When reviewing a motion to dismiss under C.R.C.P. 12(b)(5), all averments of material fact must be accepted as true, and all of the allegations in the complaint must be viewed in the light most favorable to the plaintiff." Also, the court may consider only matters stated within the complaint itself. An appellate court is in the same position as the trial court to rule on a motion to dismiss. Thus, the appellate court must determine whether the plaintiff has pleaded facts that, if true, are sufficient to support each claim asserted in the complaint. Public Service Co. v. Van Wyk, supra, 27 P.3d at 386.

I.

Plaintiff first contends he sufficiently alleged that defendants failed to grant him earned time credit to which he is entitled under §§ 17-22.5-302(1.5)(a) and 17-22.5-405, and therefore, he is entitled to mandamus relief pursuant to C.R.C.P. 106(a)(2). We are not persuaded.

C.R.C.P. 106(a)(2) provides that relief may be obtained "[w]here the relief sought is to compel a lower judicial body, governmental body, corporation, board, officer or person to perform an act which the law specially enjoins as a duty resulting from an office, trust, or station." Mandamus is appropriate only when the following three-part test is satisfied: (1) the plaintiff has a clear right to the relief sought; (2) the agency has a clear duty to perform the act requested; and (3) no other adequate remedy is available to the plaintiff. Sherman v. City of Colorado Springs Planning Comm'n, 763 P.2d 292, 295 (Colo.1988); Lazuk v. School Dist. No. 1, 22 P.3d 548 (Colo.App.2000).

"Mandamus lies to compel the performance of a purely ministerial duty involving no discretionary right and not requiring the exercise of judgment. It does not lie where performance of a trust is sought which is discretionary or involves the exercise of judgment." Bd. of County Comm'rs v. County Road Users Ass'n, 11 P.3d 432, 437 (Colo.2000).

Plaintiff contends that defendants have failed to perform their duty to award him earned time credit as required by § 17-22.5-302(1.5)(a). However, this section provides that earned time credits are to be awarded pursuant to § 17-22.5-405. Section 17-22.5-405(3), C.R.S.2002, provides that the department "may grant, withhold, withdraw, or restore, consistent with the provisions of this section, an earned time deduction from the sentence imposed." Further, § 17-22.5-302(4), C.R.S.2002, states that the DOC "may grant, withhold, withdraw, or restore" earned time deductions and such a deduction "shall not vest upon being granted and may be withdrawn once it is granted."

Plaintiff argues that the phrase "shall receive earned time pursuant to section 17-22.5-405" in § 17-22.5-302(1.5)(a) creates a mandatory duty of the DOC to grant him earned time if he makes positive progress in a correctional education program. We disagree.

When construing a statute, we must ascertain and give effect to the intent of the General Assembly. The statute must be read and considered as a whole and interpreted to give sensible and harmonious effect to all its parts. Further, we must avoid an interpretation that leads to an absurd result. State v. Nieto, 993 P.2d 493 (Colo.2000). Words and phrases should be read in context and construed according to their common usage. Section 2-4-101, C.R.S.2002.

The word "shall" used in a statute generally has a mandatory connotation. People v. Guenther, 740 P.2d 971 (Colo.1987).

When § 17-22.5-302(1.5)(a) is read in conjunction with the broad discretionary language in §§ 17-22.5-302(4) and 17-22.5-405(3), it is clear that the legislative intent was to give the DOC broad authority to "grant, withhold, withdraw, and restore" earned time deductions. This interpretation is consistent with other appellate opinions that have considered the DOC's authority over earned time deductions. Renneke v. Kautzky, 782 P.2d 343 (Colo.1989)(General Assembly granted DOC discretion to withhold, withdraw, or restore earned time credits); People v. Frank, 30 P.3d 664, 666 (Colo.App.2000)("granting of earned-time by the DOC is discretionary").

"Shall," in addition to its mandatory meaning, also can mean "should," "may," or "will." Black's Law Dictionary 1379 (7th ed.1999). To read "shall" in § 17-22.5-302(1.5)(a) in a mandatory sense would lead to an absurd result. The statute would then require a mandatory grant of credit based upon an exercise of discretion. We are directed to avoid such a result. See State v. Nieto, supra.

Thus, we conclude that granting of earned time credit under § 17-22.5-302(1.5)(a) lies in the discretion of the DOC, and plaintiff has no clear right to receive, and defendants have no clear duty to grant, earned time credit. Accordingly, plaintiff is not entitled to mandamus relief.

Plaintiff argues that defendants are obligated to review his performance records and determine whether he is entitled to earned time credit. However, plaintiff did not make such a claim in his complaint. Therefore, the issue was not properly raised, and we will not consider it here. See People v. Frank, supra (issue not raised in the district court not considered on appeal); see also County of Adams v. Hibbard, 918 P.2d 212 (Colo.1996)(appellate courts may consider only issues actually determined by another court or agency and properly presented for review).

II.

Plaintiff also contends that defendants' refusal to grant him earned time credit was a quasi-judicial determination, and therefore, he is entitled to relief pursuant to C.R.C.P. 106(a)(4). We disagree.

C.R.C.P. 106(a)(4) provides that relief may be obtained "[w]here any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law."

Quasi-judicial actions generally involve a determination of the rights, duties, or obligations of specific individuals based on the application of existing legal standards to facts developed at a hearing. Legislative action, on the other hand, usually relates to a public policy matter of a permanent or general character, prospective in nature, and usually not restricted to an identifiable person or group. Cherry Hills Resort Development Co. v. City of Cherry Hills Village, 757 P.2d 622 (Colo.1988). Actions necessary to carry out existing legislative policies are deemed to be administrative. City of Aurora v. Zwerdlinger, 194 Colo. 192, 571 P.2d 1074 (1977). Legislative and administrative actions are not reviewable pursuant to C.R.C.P. 106(a)(4). Prairie Dog Advocates v. City of Lakewood, 20 P.3d 1203 (Colo.App.2000).

We review de novo a trial court's determination whether a plaintiff was seeking review of a quasi-judicial function of a governmental body. Jones v. Colo. Dep't of Corrections, 53 P.3d 1187 (Colo.App.2002).

Here, plaintiff filed a grievance challenging the denial of earned time credit, and at each step in the grievance process, it was denied because plaintiff was not eligible for such credit pursuant to DOC policy. In the third step of the grievance process, plaintiff clarified the nature of his complaint.

I wish to clarify my position.... It is the underlying CDOC policy which renders me ineligible for the educational earned time.... It is [due to] the fact that the CDOC policy does not conform to

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