Opinion
Case No. 2:95-CV-984C
November 2, 2000
ORDER
Plaintiff Kent L. Mecham filed this 42 U.S.C. § 1983 suit alleging that Defendants violated his Fifth and Fourteenth Amendment rights to due process and his Eighth Amendment right to be free from cruel and unusual punishment. The parties have filed cross motions for summary judgment. Having fully considered the arguments of counsel, the submissions of the parties, and applicable legal authorities, the court grants in part and denies in part Defendants' motion for summary judgment and denies Mecham's cross-motion for summary judgment.
Background
In 1994, Mecham was released from the Utah State Prison. He was placed in the Intensive Supervised Parole program, where he was supervised by parole officer, Defendant Donna Taylor. One of the conditions of his parole program was to abide by his evening curfew of 7:00 p.m.
On January 30, 1995, Mecham received permission from Taylor to stay out until 8:30 p.m. on the evening of February 2, 1995, so that he could go to the Valley Mental Health ("VMH") center for a therapy appointment. On February 2, Mecham went to VMH for his 6:00 p.m. appointment but was informed by the nurse that he had been given the wrong appointment time: Mecham's appointment was actually scheduled for 5:00 p.m., and Mecham was told that he would not be able to attend the appointment because he was late. Mecham waited at VMH until 6:30 p.m. in order to speak with the doctor, and then, at the doctor's instructions, remained at VMH until approximately 6:45, filling out a questionnaire. Mecham then returned home, arriving at approximately 8:30 p.m.
Shortly after 7:00 p.m. that same evening, before Mecham had returned to his home, Taylor unsuccessfully attempted to reach Mecham by telephone at Mecham's home. Taylor left Mecham a message, instructing him to report to her office by 9:00 a.m. the next morning unless he was at VMH for his therapy. Several times that evening and the next morning, Mecham called Taylor's office, leaving messages that he had been at VMH, that he could not see her at 9:00 a.m. without risking his job, and that he'd come to Taylor's office in the late afternoon. When Taylor received Mecham's messages on the morning of February 3, she called VMH and was told that Mecham had not attended his scheduled therapy session the previous evening.
Taylor concluded that Mecham had violated his curfew because he had been out later than 7:00 p.m. without attending a therapy session, and that he had further violated his parole by missing their 9:00 a.m. appointment. Taylor sent a warrant request to the Board of Parole ("BOP"), which issued an arrest warrant for Mecham. Mecham was arrested when he arrived to see Taylor later that day.
A pre-revocation hearing was held on February 15, 17, and 21, 1995, at which Defendant Stuart McIver, the hearing officer, determined that there was probable cause to believe that Mecham had violated his parole. McIver's decision was based largely on Taylor's testimony at the hearing that she felt that Mecham had violated the conditions of his parole by remaining out past his evening curfew on February 2 and by failing to come to the 9:00 a.m. meeting on February 3. Mecham remained in custody pending a final review by the BOP.
When a parolee is arrested for a parole violation, a pre-revocation hearing is held before a department of corrections hearing officer. If the hearing officer finds no probable cause to suspect that a violation has occurred, the parolee is released and returned to parole. If, however, the hearing officer does find probable cause to believe that a parole violation has occurred, the parolee remains in custody pending a final parole revocation hearing before the Board of Parole.
On March 17, 1995, the BOP held a Special Attention Hearing to determine whether Mecham's parole should be revoked. Both Taylor and Mecham testified at this hearing, and McIver's pre-revocation report was also entered into evidence. After the hearing, the BOP took the matter under advisement. On March 20, 1995, the BOP issued an order stating: "Reinstated on parole effective 3/20/95. Release immediately. Modification of interim decision of 3/17/95 to take under advisement." (See Exhibit 24, attached to Defs.' Mot. in Supp. of Mot. for Summ. J.). Mecham was subsequently released from prison and reinstated on parole.
If the Board of Parole finds that an individual has violated the terms of his parole, it may revoke that individual's parole. The parolee is then returned to prison for a term not to exceed the length of his parole sentence.
Mecham's § 1983 claim is based on his allegation that he was wrongfully imprisoned from February 3 until March 20, 1995 — the period between the issuance of the arrest warrant and the order of the BOP reinstating him on parole — based on the false testimony of Taylor at the prerevocation hearing and the false testimony of both Taylor and McIver at the hearing before the BOP. Specifically, Mecham alleges that Taylor had originally given him permission to be out past his normal curfew if he was "at VMH." Since Mecham did go to VMH on the evening in question, he alleges he did not violate his parole. Mecham further claims that, when Taylor testified in front of McIver and the BOP, she knowingly and intentionally misrepresented the facts, claiming that she had told Mecham that he could be out past his normal curfew only if he was "in therapy." Taylor responds that her original curfew extension had only been if Mecham was "in therapy," and that she consistently testified to this effect during subsequent hearings.
Where this order refers to McIver's "testimony" at the BOP hearing, it is referring to his submission of the pre-revocation report, alleged by Mecham to contain false statements.
Standard of Review
Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court must construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 1552 (10th Cir. 1997).
Once the moving party has carried its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(e)); see also Gonzales v. Millers Cas. Ins. Co., 923 F.2d 1417, 1419 (10th Cir. 1991). The non-moving party must set forth specific facts showing a genuine issue for trial; mere allegations and references to the pleadings will not suffice. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Discussion
I. Qualified Immunity
Taylor and McIver assert that, as government officials, they are entitled to qualified immunity. The Tenth Circuit Court of Appeals has already resolved this issue in its decision of July 8, 1997, holding that McIver may be entitled to qualified immunity, but not to absolute immunity. See Mecham v. Taylor, 1997 WL 375363 at *2 (10th Cir., July 8, 1997) (unpublished); see also Russ v. Uppah, 972 F.2d 300 (10th Cir. 1992); Mee v. Ortega, 967 F.2d 423 (10th Cir. 1992). In its decision, the Court stated that "[i]f McIver knowingly included false information in his report finding probable cause to revoke Mecham's parole, he would not be protected by qualified immunity." Mecham, 1997 WL 375363, at *2, citing Russ, 972 F.2d at 303-04 (holding that claim that parole officer intentionally falsified information in order to have the parolee's parole revoked should survive a motion to dismiss). Although the court addressed McIver only, the reasoning certainly applies to Taylor, as well. Accordingly, neither Taylor nor McIver will be entitled to qualified immunity if he or she knowingly gave false testimony at the pre-revocation hearing or at the BOP hearing.
II. Collateral Attack
Taylor and McIver next assert that, even if Mecham was unconstitutionally imprisoned, he is barred from seeking damages for that imprisonment due to the U.S. Supreme Court's ruling in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that a claim for damages for allegedly unconstitutional imprisonment was not cognizable under 42 U.S.C. § 1983 unless the conviction or imprisonment had previously been declared invalid. See Id., 512 U.S. at 487. If the conviction or sentence had not been previously invalidated, then a judgment for the plaintiff would imply its invalidity, and the action would thus represent an illegitimate collateral attack on the previous judgment. Id. The Tenth Circuit has extended Heck to apply to a revocation of parole and subsequent imprisonment. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996).
The Court commented that a conviction or imprisonment could be declared invalid by being reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determinations, or called into question by a federal court's issuance of a writ of habeas corpus. See Heck, 512 U.S. at 487.
The Tenth Circuit has also addressed the question raised by Heck, holding that "the precondition for suit mandated by Heck, invalidation of Mecham's parole revocation, is alleged in Mecham's complaint as well as in his objection to the magistrate's Report and Recommendation. It is an abuse of discretion to dismiss Mecham's complaint as frivolous under Heck unless and until such allegation is proven false." Mecham, 1997 WL 375363 at *1. However, it is unclear that Heck would even apply to the facts of this case. Underlying the Supreme Court's ruling in Heck was a concern that collateral civil suits challenging criminal judgments would undermine the finality and consistency of those judgments. See Heck, 512 U.S. at 484-85. Here, there is no final criminal judgment which could be undermined by Mecham's § 1983 suit. The pre-revocation hearing held before McIver was not a final revocation of Mecham's parole, only a recommendation to the BOP. Mecham's suit does not contest the validity of the only final ruling of the BOP, its March 20, 1995, order (and, indeed, it could not, because that ruling resulted not in his parole revocation, but in his release from prison and reinstatement on parole). Unlike Crow, there has been no official "parole revocation" by the BOP in this case, thus indicating that Mecham's suit does not raise concerns about a collateral attack upon a final criminal judgment. Accordingly, Mecham's suit for damages for allegedly unconstitutional imprisonment is not barred by Heck.
III. Allegedly False Statements of Taylor and McIver
Mecham alleges that he was unconstitutionally imprisoned due to false testimony by Taylor at the pre-revocation hearing. Specifically, Mecham alleges that Taylor had told him that he could be out past curfew on February 2, 1995, if he was "at VMH"; that she requested a warrant despite the knowledge that he had complied with her curfew order; and that she falsely testified at the prerevocation hearing that Mecham had violated his curfew when she knew that Mecham had simply followed her instructions. If Mecham can prove that these allegations are true and that he was imprisoned because of testimony Taylor knew to be false, then he would be entitled to relief on his § 1983 claim. Because the parties have raised a factual question as to whether Taylor knowingly misrepresented facts in her warrant request or at the pre-revocation hearing, the court is precluded from granting summary judgment to either party on this claim.
Mecham next claims that he was unconstitutionally imprisoned due to false testimony given by Taylor and McIver at the BOP Special Attention Hearing on March 17, 1995. Even if this allegation is true, Mecham suffered no constitutional injury as a result of the testimony. The injury Mecham has alleged he suffered is imprisonment, but the result of the BOP hearing was Mecham's release from prison and his reinstatement on parole. Therefore, even assuming that Taylor or McIver knowingly gave false testimony at the BOP hearing, Mecham was not imprisoned after the hearing as a result of their false testimony. Accordingly, the court grants summary judgment in favor of the Defendants on Mecham's claim that Taylor or McIver gave false testimony at the BOP hearing.