FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 October 24, 2012
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                    Clerk of Court
                                  TENTH CIRCUIT


 RANDY KAILEY,

          Plaintiff-Appellant,

 v.                                                      No. 11-1372
                                                  (No. 1:11-CV-00143-LTB)
 BILL RITTER; ARISTEDES
 ZAVARAS; KEITH NORDELL;                                   (D. Colo.)
 MARY CARLSON; ANTHONY
 DECESARO; CARL GILGE; BURL
 MCCULLAR; RYAN LONG; JOHN
 LEONARD; CONNIE STEVENS;
 JOHN BIHARRY; JAMES DAY;
 JOHN GAYLORD; ROBERT
 KAHANIC; ALVIN SAIS; BETH
 STEPHENSON; WILLIAM
 FLEMING; DEBRA PACHECO; W.
 GERALD SCRUGGS; RICK
 LALONDE; ROBERT WRIGHT;
 RICHARD MANNING; JAMES
 LUECK; RAYMOND GONZALES;
 CRUZ CABALLERO; CAROL
 MORTON; MIKE LEEWAYE; KEITH
 VALERIO; DONALD STURGEON;
 GLYNETTE SMITH; ED VIGIL, in
 their individual and official capacities,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


      *
             This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Before KELLY, HARTZ, and HOLMES, Circuit Judges.




      Plaintiff-Appellant Randy Kailey, a Colorado state prisoner proceeding pro

se, 1 appeals from the district court’s dismissal of his complaint alleging various

civil rights violations under 42 U.S.C. § 1983. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

                                          I

      Mr. Kailey is an inmate in a Colorado state prison. He filed a complaint in

the U.S. District Court for the District of Colorado, alleging that he was not

awarded the earned time credits (“credits”) he should have received. Specifically,

Mr. Kailey’s complaint alleges: 2 (1) that he participated in recommended one-on-

one sex-offender counseling sessions and other treatment, but was denied certain

credits that other state prisoners participating in the same program received for

their participation, see R. at 189 (Second Am. Compl, filed May 10, 2011); (2)


Procedure 32.1 and Tenth Circuit Rule 32.1.
      1
            We construe Mr. Kailey’s pro se filings liberally. See Erickson v.
Pardus, 

, 94 (2007) (per curiam); Van Deelen v. Johnson, 

, 1153 n.1 (10th Cir. 2007).
      2
              Mr. Kailey filed a second amended complaint and it was the subject
of the district court’s order of dismissal. In discussing Mr. Kailey’s “complaint,”
we are referring to his second amended complaint.

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that after being transferred to a prison that did not provide certain treatment

options, he placed himself on a “waiting list” but was denied the corresponding

credits, to which he avers statutory entitlement, and that other prisoners on the list

did receive, see 

(3) that after complaining to prison officials

about not being awarded credits, and receiving a promise that certain credits

would be “restored,” the credits were not restored, see 

Kailey

alleges that he has earned “more than . . . 1,154 days” of credit that has

unlawfully been denied. See 

Kailey named thirty-five defendants, principally prison officials, in

both their official and individual capacities. His complaint includes six specific

claims, in which he avers violations of his First, Fifth and Fourteenth Amendment

rights. He sought both equitable relief, i.e., declaratory and injunctive relief, and

damages.

      The district court determined that “[f]or the most part, Mr. Kailey’s

supporting facts took place more than two years before he submitted the instant

action for filing, and his claims now are barred by the statute of limitations.” 

of Dismissal, filed June 23, 2011). The court noted, however, that

even if it “were to consider Mr. Kailey’s claims on the merits, the claims would

be dismissed as legally frivolous.” 

the court reasoned that because Mr. Kailey was convicted of


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a sex offense, and he is subject to discretionary (not mandatory) parole, he “does

not have a liberty interest in receiving direct credit against his sentence.” 

court stated that “earned time credits are not protected independently by

the Constitution,” 

Wolff v. McDonnell, 

, 557

(1974)), and that “Mr. Kailey fails to demonstrate the existence of any

constitutionally protected liberty interest that arises under state law because the

award of earned time credits in Colorado is discretionary with prison authorities,”

Pierson, 

, 1262 (10th Cir. 2006)). 3

      With respect to Mr. Kailey’s putative discrimination claims—i.e., that

unlike him, other inmates continue to receive credits even though they had been

convicted of a disciplinary infraction; and that his placement in a prison facility

that lacks certain programs that would qualify him for credits is, itself, disparate



      3
              In a previous case also filed in the U.S. District Court for the District
of Colorado, Mr. Kailey lodged a facial constitutional challenge to the Colorado
parole scheme, as construed by the Colorado Attorney General. See Rather v.
Romer, 

, No. 90-1260, 

(10th Cir. Apr. 8, 1991)
(unpublished table decision). A panel of this court upheld the district court’s
dismissal of Mr. Kailey’s claims. See 

panel rejected his due-
process challenge on the ground that he had not established a constitutionally
protected liberty interest in parole. See 

panel concluded that the
U.S. Constitution did not provide him a liberty interest in mandatory parole. See

Colorado Supreme Court had construed the parole
regime relating to sex offenders as providing for discretionary parole—a reading
that we accord deference—the panel determined that Colorado law did not create
a constitutionally protected liberty interest in parole. See 

that, to the extent that the relief sought would involve securing speedier release
from prison, “the action . . . is in reality one for habeas corpus relief.” 

treatment—the district court held that Mr. Kailey’s “allegations do not make a

rational argument on the law and facts supporting an equal protection claim.” 

court reasoned that “Mr. Kailey fails to assert how he was treated

differently from other similarly situated inmates in the denial of earned time

credits or for his placement in a prison facility where [certain programs are] not

available.” 

Penrod v. Zavaras, 

, 1406 (10th

Cir. 1996) (per curiam)).

      Mr. Kailey filed a Motion for Reconsideration. The district court denied

that motion, noting that “[a] motion for reconsideration is appropriate where a

court has misapprehended the facts, a party’s position, or the controlling law,”

and that “Mr. Kailey does not argue an intervening change in controlling law or

the availability of new evidence . . . [and] fails to demonstrate the need to correct

clear error or prevent manifest injustice.” 

Denying Mot. for

Reconsideration, filed July 20, 2011). Mr. Kailey timely filed a notice of appeal.

                                         II

       For several reasons, we conclude that Mr. Kailey’s claims must fail. We

address each of these reasons in turn.

                                          A

      In his complaint, Mr. Kailey seeks certain forms of declaratory and

injunctive (i.e., equitable) relief. He requests a declaratory judgment stating that


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certain defendants “willfully failed to enter [his] meritorious sentence reduction

credits . . . as was . . . specifically required by state law . . . in violation of his

Constitutionally protected Fifth and Fourteenth Amendment liberty interest.” 

also seeks a declaratory judgment that other defendants “wantonly

refused to enter [his] meritorious sentence reduction credits into the [state

computer system] as was . . . required by . . . law.” 

seeks

injunctive relief, including, among other things, orders directing certain

defendants to “award [Mr. Kailey] [a total of 1,270] meritorious sentence

reduction credits to be deducted from the criminal sentence.” 

a judgment in Mr. Kailey’s favor would necessarily imply the

invalidity of his sentence, his complaint under § 1983 must be dismissed unless

Mr. Kailey can show that the sentence has already been invalidated, for example,

as the result of a habeas proceeding. See Heck v. Humphrey, 

,

486–87 (1994); see also Edwards v. Balisok, 

, 646 (1997); Janke v.

Price, 

, No. 96-1493, 

, at *4 (10th Cir. Sept. 2,

1997) (unpublished table decision) (“[Plaintiff’s] claims that seek restoration of

his good time credits are not cognizable under § 1983 until he has established that

the conviction or sentence has been declared invalid.”). In other words, Mr.

Kailey’s claims should have been brought in a petition for a writ of habeas

corpus, and not in a civil rights action. See Preiser v. Rodriguez, 

,

500 (1973) (“[W]hen a state prisoner is challenging the very fact or duration of

                                             -6-
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.” (emphases added)); see also

Smith v. Maschner, 

, 951 (10th Cir. 1990) (“Insofar as [the

appellant] seeks restoration of his good time credits, his complaint runs afoul of

the Supreme Court’s holding in Preiser v. Rodriguez.” (citation omitted)); Rather,

, at *1; accord Urrutia v. Harrisburg Cnty. Police Dep’t, 

, 462 (3d Cir. 1996) (holding that where plaintiff sought relief from custody,

his complaint sounded in habeas corpus, not civil rights). Whether or not Mr.

Kailey is entitled to such equitable relief, we are not in a position to grant it. 4

      It is true that “[t]he district court could liberally construe [a pro se

petitioner’s civil rights] complaint as a section 2254 petition.” 

              We note that, in his prayer for relief, Mr. Kailey also purports to
request injunctive relief more broadly. Specifically, Mr. Kailey seeks to enjoin
the defendants from “withholding meritorious sentence reduction credits from
state prisoners based solely upon conviction for disciplinary infractions until such
time as state law . . . [is] amended to recognize the loss of meritorious sentence
reduction credits as an authorized sanction, or penalty, for conviction of
disciplinary infractions.” 

order to grant this form of relief,
however, we would need to conclude as an antecedent matter that Colorado law
currently does not authorize the withholding of prisoners’ credits as a sanction or
penalty for disciplinary infractions. And Mr. Kailey’s averments leave no doubt
that such a conclusion will necessarily entitle him to an award of credits. See 

the number of credits that he was improperly denied
because of unlawful application of Colorado law to deny credits based upon his
disciplinary violations). Accordingly, this is not the type of “prospective relief
[that] will not ‘necessarily imply’ the invalidity of a previous loss of good-time
credits, and so may properly be brought under § 1983.” 

.

                                           -7-
951. But, even if we were to construe Mr. Kailey’s complaint as a habeas

petition, it would be defective. To obtain habeas relief Mr. Kailey would be

required to name the warden of the correctional facility in which he is confined.

See Depineda v. Hemphill, 

, No. 94-1094, 

, at *3

(10th Cir. June 9, 1994) (per curiam) (unpublished table decision). The warden is

a necessary party to a § 2254 action. See id.; see also Rule 2(a) of the Rules

Governing Section 2254 Cases in the United States District Courts (“If the

petitioner is currently in custody under a state-court judgment, the petition must

name as respondent the state officer who has custody.”); Bridges v. Chambers,

, 1049 (7th Cir. 2005) (“A federal habeas corpus action brought by

a state prisoner must name as the respondent the state officer who has custody of

the petitioner.” (citation omitted) (internal quotation marks omitted)); Smith v.

Idaho, 

, 354–55 (9th Cir. 2004) (holding that the district court lacks

personal jurisdiction over a habeas petition when the state official having custody

is not named as respondent). Mr. Kailey, however, did not name the warden as a

respondent. Accordingly, Mr. Kailey’s § 1983 action—even if it were construed

as a habeas petition—would fail.

                                          B

      To the extent Mr. Kailey’s complaint seeks damages under § 1983, see R.

at 227, his claims also must fail. In addition to the equitable relief sought, Mr.



                                         -8-
Kailey seeks awards of “[c]ompensatory damages” resulting from “false

imprisonment,” for “severe mental anguish and other extreme emotional distress,”

and for “unwanted pain and suffering.” 

punitive damages, as

well as costs, and “[a]ny additional relief the Court or jury may deem appropriate,

proper, and otherwise just.” 

§ 1983, Mr. Kailey sued numerous state officials in their

official capacity for damages. This avenue is not viable for Mr. Kailey. Neither

the State, nor state officials who are sued in their official capacities, can be

proceeded against under § 1983 because they are not “persons” within the

meaning of the statute (and therefore, the Eleventh Amendment bars such suit in

federal court). Duncan v. Gunter, 

, 991 (10th Cir. 1994) (“Neither

states nor state officers sued in their official capacity are ‘persons’ subject to suit

under section 1983.”) (citing Will v. Mich. Dep’t of State Police, 

,

70–71 (1989)); see Hunt v. Bennett, 

, 1267 (10th Cir. 1994) (“[T]he

Eleventh Amendment precludes a federal court from assessing damages against

state officials sued in their official capacities because such suits are in essence

suits against the state.”); see also Whitney v. New Mexico, 

, 1173

(10th Cir. 1997); Thompson v. Hadwiger, 

, No. 93-7096, 

, at *1 n.2 (10th Cir. Apr. 15, 1994) (per curiam) (unpublished table

decision).



                                          -9-
      In his § 1983 claims, Mr. Kailey also sued the defendants in their

individual capacities. However, upon review of the pertinent legal authorities and

the record as a whole—and for substantially the same reasons stated by the

district court—we conclude that Mr. Kailey’s claims for damages against the

defendants in their individual capacities are substantively without merit.

                                           III

      For the reasons set forth above, we AFFIRM the district court’s order

dismissing Mr. Kailey’s complaint and its resulting judgment. Mr. Kailey’s

pending motion to proceed in forma pauperis on appeal is GRANTED. Mr.

Kailey is reminded of his obligation to continue making partial payments until his

entire filing fee has been paid in full.




                                                  Entered for the Court



                                                  JEROME A. HOLMES
                                                  Circuit Judge




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