                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                  October 2, 2012
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court

 NORMAN RAY REED, JR.,

          Plaintiff-Appellant,
                                                        No. 12-1292
 v.                                            (D.C. No. 1:12-CV-00068-LTB)
                                                          (D. Colo.)
 DAVID MICHAUD; JOHN
 SUTHERS; MICHAEL ANDERSON;
 DEBORAH ALLEN; TOM WATERS;
 TIM HAND; JOE THISSALWOOD;
 DAVID RILEY, all in their
 professional and individual capacities,

           Defendants.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, McKAY and HOLMES, Circuit Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously to honor the plaintiff’s request for a decision on the briefs without

oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The defendants

in this action have never been served. The case is, therefore, submitted without

      *
        This order and judgment is not binding precedent, except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
oral argument.

                                          I.

       Norman Ray Reed, Jr. (Reed), a Colorado state prisoner, appeals pro se the

district court’s order dismissing his 42 U.S.C. § 1983 complaint and seeks leave

to appeal in forma pauperis (IFP). In his amended complaint, Reed alleges that

the Colorado Parole Board and various state officials improperly found him in

violation of parole conditions that prohibit use of alcohol or illegal drugs in

disregard of his status as a registered medical marijuana patient under Colorado

law. R. Vol. I, at 156–64; see Colo. Const. art. XVIII, § 14. Reed additionally

alleges that he was not allowed to present a defense during his parole hearing and

that he was coerced into waiving his Colorado constitutional rights. R. Vol. I, at

152, 154. Reed argues the Parole Board’s determination violated his

constitutional rights to “equal protection of the laws, [d]ue [p]rocess, [d]eliberate

[i]ndifference, and 6th amendment right to have a fair opp[o]rtunity via

court/att[orney]/[j]ury to see if any [f]ederal law actually was violated.” Id. at

153.

       Noting that Reed’s claims necessarily implied the invalidity of the Parole

Board’s finding that Reed had violated his parole, the district court concluded

Heck v. Humphrey, 512 U.S. 477 (1994), barred Reed’s claims. R. Vol. I, at 174.

The district court additionally concluded that “it appear[ed to be] within the

authority of the parole board to impose the conditions of parole to which Mr.

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Reed objects.” Id. at 173. Accordingly, the district court sua sponte dismissed

Reed’s § 1983 claims pursuant to 28 U.S.C. § 1915. § 1915(e)(2) (requiring a

court to dismiss when the court determines that the action or appeal is “frivolous

or malicious” or “fails to state a claim on which relief may be granted.”); R. Vol.

I, at 171–72.

      In a motion seeking reconsideration of the dismissal of his § 1983 action,

Reed stated that he has fully served his sentence imposed for the parole violation

at issue here. R. Vol. I, at 177 (citing Reed’s release date as May 29, 2010, for

Reed’s parole violation). At the time the district court dismissed Reed’s claims

as barred by Heck, Reed had been instead re-incarcerated for failure to register as

a sex offender. See id. at 6, 181.

      In its denial of the motion to reconsider, the district court found that

reconsideration was inappropriate because “Reed indicated [in the amended

complaint] that he was incarcerated based on his parole revocation for use of

medical marijuana.” Id. at 211. Accordingly, that claim was the focus of the

court’s dismissal under Heck. The district court went on to find that nothing in

Plaintiff’s motion warranted reconsideration of its prior order. The court noted

that Reed’s newfound argument asserting only a general challenge to the

constitutionality of state “parole procedures” and “parole suitability” would

render his prior “attack on his parole revocation for medical marijuana use moot.”

Id. at 178, 211. We exercise jurisdiction under 28 U.S.C. § 1291 and affirm.

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                                          II.

      We review de novo a district court’s § 1915(e)(2) dismissal of a complaint

for failure to state a claim, accepting the allegations as true and viewing them in

the light most favorable to the plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217

(10th Cir. 2007). Because Reed filed his complaint pro se, we construe his

pleadings liberally. See Bear v. Patton, 451 F.3d 639, 641 (10th Cir. 2006).

      In Heck, the Court held

      that, in order to recover damages for allegedly unconstitutional
      conviction or imprisonment, or for other harm caused by actions
      whose unlawfulness would render a conviction or sentence invalid, a
      § 1983 plaintiff must prove that the conviction or sentence has been
      reversed on direct appeal, expunged by executive order, declared
      invalid by a state tribunal authorized to make such determination, or
      called into question by a federal court’s issuance of a writ of habeas
      corpus, 28 U.S.C. § 2254.

Heck, 512 U.S. at 486–87 (footnote omitted). This court has previously held that

“when the concerns underlying Heck exist,” the principles of Heck should apply.

Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th Cir. 1999)

(finding that such concerns include “claims that would necessarily imply the

invalidity of any conviction.”).

      [W]hen a state prisoner seeks damages in a § 1983 suit, the district
      court must consider whether a judgment in favor of the plaintiff
      would necessarily imply the invalidity of his conviction or sentence;
      if it would, the complaint must be dismissed unless the plaintiff can
      demonstrate that the conviction or sentence has already been
      invalidated.

Heck, 512 U.S. at 487.

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                                           III.

      Regardless of whether the Heck bar applies, we agree with the district court

that dismissal was warranted because Reed’s amended complaint failed to state a

claim in light of the Parole Board’s authority to require parolees to abide by rules

it enumerates. R. Vol. I, at 172–73 (citing Colo. Rev. Stat. § 17-2-

201(5)(f)(I)(H)–(I) (“As a condition of every parole, the parolee shall sign a

written agreement that contains such parole conditions as deemed appropriate by

the board, which . . . include . . . [t]hat the parolee shall not abuse alcoholic

beverages or use illegal drugs while on parole.”)).

      Reed does not contest that he tested positive for tetrahydrocannabinol

(THC), an ingredient in marijuana, nor does he contest the Board’s authority to

impose general drug and alcohol restrictions on parolees. Id. at 152; see United

States v. Spann, 515 F.2d 579, 582 (10th Cir. 1975). Rather, he argues that his

status as a registered medical marijuana patient under Colorado law creates a

constitutional right to use medical marijuana and a defense against imposition of

this parole restriction. R. Vol. I, at 156–57. Cf. Beinor v. Indus. Claim Appeals

Office, 262 P.3d 970, 976 (Colo. App. 2011).

      Under Colorado law, “one who is on parole is granted a special privilege to

be outside the walls of the institution while serving his sentence[;] . . . such a

parolee remains in constructive custody and is subject to be returned to the

enclosure at any time.” People v. Hunter, 738 P.2d 20, 22 (Colo. App. 1986);

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Colo. Rev. Stat. § 17-2-207. The conditions of that parole are governed by

statute, including “obey[ing] all state and federal laws and municipal ordinances”

and “any other condition the board may determine to be necessary.” Colo. Rev.

Stat. § 17-2-201(5)(f)(I)(C), (I); see 21 U.S.C. § 844(a) (criminalizing possession

of a controlled substance). In light of the above, Reed has failed to sufficiently

state a claim for which relief may be granted. See People v. Watkins, 282 P.3d

500, 503–04, 506 (Colo. App. 2012) (finding that federal prohibition on the use

and possession of medical marijuana constituted an “offense” under probation

regardless of Colorado’s medical marijuana constitutional amendment).

                                          IV.

      We AFFIRM the district court’s dismissal of Reed’s claims under 28

U.S.C. § 1915(e)(2) and the denial of Reed’s motion for reconsideration. We

DENY Reed’s motion to proceed in forma pauperis and remind him of his

obligation to pay the filing and docket fees in full to the clerk of the court. See

Kinnell v. Graves, 265 F.3d 1125,1129 (10th Cir. 2001).


                                                Entered for the Court


                                                Mary Beck Briscoe
                                                Chief Judge




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