                                                                 FILED
                                                      United States Court of Appeals
                                                              Tenth Circuit

                                                          February 26, 2015
                    UNITED STATES COURT OF APPEALSElisabeth A. Shumaker
                                                             Clerk of Court
                                  TENTH CIRCUIT


JAMES K. CONKLETON,

             Plaintiff - Appellant,

      v.                                             No. 14-1271
                                            (D.C. No. 1:14-CV-01345-LTB)
RICK RAEMISCH, Executive Director of                   (D. Colo.)
the Colorado Department of Corrections
(CDOC), in his official capacity;
BRANDON SHAFFER, Chairman,
Colorado Board of Parole, in his official
capacity; ALFREDO PENA, Member,
Colorado Board of Parole, in his official
capacity; DENISE BALAZIC, Member,
Colorado Board of Parole, in her official
capacity; BART COX, Treatment
Provider for the CDOC Sex Offender
Treatment and Management Program
(SOTMP), in his official capacity;
MICHAEL FLOYD, Contract
Polygrapher of Amich & Jenks, Inc., in
his official capacity; ANN NEWMAN,
Treatment Provider for the CDOC
SOTMP, in her official capacity;
SAMUEL DUNLAP, Treatment Provider
for the CDOC SOTMP, in his official
capacity; LEONARD WOODSON,
Treatment Provider for the CDOC
SOTMP, in his official capacity; JEFF
JENKS, Contract Polygrapher/Sex
Offender Management Board (SOMB)
member, in his official capacity;
COLTON MCNUTT, Treatment Provider
for the CDOC SOTMP, in his official
capacity; SOTMP TREATMENT TEAM,
in its official capacity,
             Defendants - Appellees.
                              ORDER AND JUDGMENT*


Before HARTZ, McKAY, and MATHESON, Circuit Judges.


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

unanimously that oral argument would not materially assist in the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore ordered

submitted without oral argument.

       Plaintiff James Conkleton, a state prisoner serving an indeterminate sentence of ten

years to life for a Colorado sex offense, filed a complaint under 42 U.S.C. § 1983 in

which he asserted due process, retaliation, and equal protection claims relating to the

state’s sex offender treatment program. The district court concluded that the due process

claim was legally frivolous and that the retaliation and equal protection claims were

barred by the rule announced in Heck v. Humphrey, 512 U.S. 477 (1994). The court

accordingly dismissed the complaint. This appeal followed.

       Under Colorado law, the state parole board considers various “progress in

treatment” criteria—defined by administrative regulation—to determine whether a sex

offender may appropriately be released from incarceration. See Colo. Rev. Stat. §16-



       *
         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.

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11.7-103(4)(f). The administrative regulation defining these criteria provides that the

Department of Corrections’ Sex Offender Treatment and Monitoring Program will

recommend “progression to community” when offenders meet each of five listed criteria.

See Colo. Admin. Reg. § 700-19. As relevant to this appeal, one of these criteria provides

that “[t]he offender must have a complete full disclosure of their sexual history as verified

by a non-deceptive polygraph assessment of his or her deviant sexual history” in order to

receive a SOTMP recommendation for “positive progression.” Id.

       Colorado law expressly provides that “[t]he criteria shall not limit the decision-

making authority of the court or the state board of parole.” Colo. Rev. Stat. §16-11.7-

103(4)(f). However, the state parole board considers the treatment criteria “in

determining whether the sex offender could be appropriately supervised in the community

if he or she were released from incarceration.” Id.

       In his complaint, Plaintiff raised three claims, all arising from his failure of a

polygraph examination in October 2013 and prison officials’ subsequent certification of

the parole board that Plaintiff was not meeting the treatment criteria for a

recommendation of release. Specifically, Plaintiff alleged that (1) his due process rights

were violated by prison officials’ failure to provide due process protections before

certifying he did not meet the treatment criteria as a result of his failed polygraph test; (2)

prison officials’ actions relating to the polygraph and the certification that he was not

meeting the treatment criteria were motivated by the intent to retaliate against Plaintiff for

his filing of prison grievances; and (3) the parole board violated Plaintiff’s equal

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protection rights by denying his parole application for failure to meet the treatment

criteria even though they have granted parole to offenders from other Colorado prisons

who have not met all of the criteria. The district court dismissed the first claim as

frivolous and the second two claims as barred by the Heck rule.

         We agree with the district court that Plaintiff cannot succeed on his due process

claim. Because Colorado’s parole scheme for sex offenders is discretionary, with the

parole board retaining its discretion to grant or deny parole regardless of whether the

treatment criteria have been met, Plaintiff does not have a constitutionally protected

liberty interest in being granted parole or in receiving a favorable parole certification or

recommendation. See Firth v. Shoemaker, 496 F. App’x 778, 789-90, 792 (10th Cir.

2012).

         We also agree with the district court that Plaintiff’s equal protection claim is

barred by the Heck rule. Under Heck, a prisoner’s § 1983 action is barred “if a judgment

in favor of the plaintiff would necessarily imply the invalidity of his conviction or

sentence.” 512 U.S. at 487. In his equal protection claim, Plaintiff seeks to invalidate the

state parole board’s denial of parole on the basis that the parole board has granted parole

to other offenders in his position. Because success on this claim would thus necessarily

imply the invalidity of the duration of his confinement, it is barred by Heck. See

Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (“Few things implicate the

validity of continued confinement more directly than the allegedly improper denial of

parole.”).

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       Similarly, to the extent Plaintiff seeks to raise a retaliation claim against members

of the parole board based on their denial of parole, his claim against these defendants is

likewise barred by Heck. However, we conclude that Plaintiff’s retaliation claim is not

otherwise barred by Heck. Construing Plaintiff’s complaint liberally, he raises a

retaliation claim against several prison officials based not on the denial of parole itself,

but rather on the officials’ allegedly retaliatory actions of, among other things, certifying

that he had not met the treatment criteria for a favorable parole recommendation. While it

is possible that a favorable parole recommendation might have resulted in a different

decision by the parole board, the parole board retains the discretion to grant or deny

parole regardless of whether prison officials certify that an inmate has met the treatment

criteria. Thus, success on Plaintiff’s retaliation claim against the prison officials would

not necessarily imply the invalidity of the parole board’s denial of parole. Accordingly,

as in the Supreme Court case of Wilkinson v. Dotson, this claim is not barred by Heck

because success on this claim would not necessarily entitle Plaintiff to immediate or

speedier release. See Wilkinson v. Dotson, 544 U.S. 74, 82 (2005) (holding that

challenges to parole procedures did not fall under the Heck bar where success for the

prisoners would not necessarily spell immediate or speedier release, but would only

entitle them, at most, to a new parole hearing). We therefore conclude that the district

court erred in holding that Plaintiff’s retaliation claim against the prison officials was

barred by the Heck rule.

       We accordingly reverse the dismissal of Plaintiff’s retaliation claim against the

                                              -5-
prison officials and remand this claim to the district court for further proceedings. In so

doing, we express no opinion as to the ultimate merits of this claim, nor do we express

any opinion as to whether there may be another basis on which this claim could

appropriately be dismissed. We simply hold that the district court should not have

dismissed this claim under Heck, and we remand for the district court to conduct further

proceedings with respect to this claim.

       For the foregoing reasons, we AFFIRM the district court’s dismissal of Plaintiff’s

due process and equal protection claims. We also AFFIRM the dismissal of Plaintiff’s

retaliation claim as it relates to members of the parole board. We REVERSE and

REMAND the district court’s dismissal of Plaintiff’s retaliation claim as it relates to the

other defendants. We GRANT Plaintiff’s motion to proceed in forma pauperis on appeal

and remind him of his obligation to continue making partial payments until the entire

filing fee has been paid in full.

                                                   Entered for the Court



                                                   Monroe G. McKay
                                                   Circuit Judge




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