                                                                                  FILED
                                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS                         Tenth Circuit

                              FOR THE TENTH CIRCUIT                         February 25, 2020
                          _________________________________
                                                                          Christopher M. Wolpert
                                                                              Clerk of Court
 JIMMIE GRAHAM,

      Plaintiff - Appellant,

 v.                                                          No. 19-1205
                                                 (D.C. No. 1:19-CV-01018-LTB-GPG)
 TOM WATERS, Parole Board Member;
                                                              (D. Colo.)
 DENISE BALAZIC, Parole Board
 Member; ALEXANDRA WALKER,
 Parole Board Member,

      Defendants - Appellees.
                          _________________________________

                              ORDER AND JUDGMENT*
                          _________________________________

Before LUCERO, PHILLIPS, and EID, Circuit Judges.
                  _________________________________

      Plaintiff Jimmie Graham, an inmate proceeding pro se,1 appeals the district

court’s dismissal of his 42 U.S.C. § 1983 civil rights action against three Colorado



      *
        After examining the briefs and 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). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
      1
         Because Graham is proceeding pro se, we liberally construe his filings. See
United States v. Pinson, 584 F.3d 972, 975 (10th Cir. 2009) (“[W]e must construe [a
pro se litigant’s] arguments liberally; this rule of liberal construction stops, however,
at the point at which we begin to serve as his advocate.”).
Parole Board members. Adopting the magistrate judge’s Report and

Recommendations (R & R), the district court initially dismissed Graham’s appeal,

because he failed to file a timely objection. In response, Graham filed a Motion for

Reconsideration and Written Objections to Magistrate Recommendation—an action

the district court liberally viewed through the lens of Fed. R. Civ. P. 59(e). The

district court ultimately denied the Motion and dismissed Graham’s claims on several

grounds: (1) that a request for release from custody did not constitute a cognizable

request for relief in a § 1983 action; (2) by the rule in Heck v. Humphrey, 517 U.S.

477, 487 (1994), which held that a damages award under § 1983 was not an available

remedy when “a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence;” and (3) on absolute immunity and Eleventh

Amendment sovereign immunity grounds. Exercising jurisdiction under 28

U.S.C. § 1291, we affirm.

                                 I. BACKGROUND

      In 2016, Graham began serving a five-year parole sentence on a charge of

Escape. ROA Vol. I at 17. On June 7, 2018, Graham was convicted of a “technical

parole violation.” Id. at 7. Based on this infraction, the Colorado Board of Parole

conducted a hearing and then revoked Graham’s parole for the remainder of his five-

year period. Id. Graham appealed this decision back to the Parole Board, arguing

that revocation “for the remainder” of his parole term was in “direct contravention”

of the applicable Colorado statute governing the class and type of felony conviction

he was originally sentenced for. Id. Parole Board members defendant Denise

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Balazic and defendant Alexandra Walker denied his appeal, stating that the original

hearing “was conducted in accordance with existing statu[t]es.” Id.

      Graham brought two claims for relief under 42 U.S.C. § 1983 in the district

court. First, he argued that the Parole Board’s decision “willfully and wantonly

ignored the law.” Id. He noted that this decision of the Parole Board conflicted with

Colorado Revised Statutes § 17-2-1035, concerning revocation proceedings. Id. For

that reason, Graham alleged the defendants violated his rights under the Equal

Protection Clause of the Fourteenth Amendment by allowing his revocation to stand

because of a technical violation. Id. He further argued that this parole revocation

also amounted to a violation of his Fourteenth Amendment Due Process rights, as the

defendants “overstep[ped] their discretionary boundaries when they incarcerated the

Plaintiff beyond what was designated appropriate by the law making body of this

state.” Id. at 11. Graham sought both monetary damages and an injunction ordering

his release back onto parole. Id. at 9.

      The magistrate judge issued the R & R on April 19, 2019. It advised dismissal

of Graham’s complaint for several reasons. To begin, the magistrate judge noted that

Graham’s request for an injunction ordering his release from custody was “not an

appropriate request for relief in this § 1983 action.” ROA Vol. I at 18. Instead, the

“sole federal remedy with respect to such a claim is a writ of habeas corpus.” Id.

And the R & R cited Heck v. Humphrey, 512 U.S. 477 (1994), as barring Graham’s

damages claims. Under Heck, one may not bring a claim under 42 U.S.C. § 1983 if

“a judgment in favor of the plaintiff would necessarily imply the invalidity of [the

                                           3
plaintiff’s] conviction or sentence . . . unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.” 512 U.S. at 487. Because

accepting Graham’s claims would directly challenge his ongoing confinement, the

magistrate judge advised that “Plaintiff’s claims are barred by Heck.” ROA Vol. I at

20.

       Next, the magistrate judge found that Parole Board members “are personally

immune from Plaintiff’s damages claims” as they enjoy absolute immunity for

actions taken as part of the board’s official duties regarding the granting or denying

of parole. Id. Nor could Graham sue the Parole Board members in their official

capacity, because the magistrate judge viewed these claims as against the State of

Colorado. As such, Eleventh Amendment immunity barred Graham’s claim for

damages. Id.

       The magistrate judge recommended dismissing the action, because Graham

sought damages from defendants who were immune from such relief. See 28 U.S.C.

§ 1915(e)(2)(B)(i) and (iii). Additionally, the rule in Heck barred Graham’s damages

claims. The R & R advised Graham that he needed to file specific, written objections

within fourteen days after service or he would waive his right to further review by the

district court judge and the court of appeals. ROA Vol. I at 16.

       Three weeks after the filing of the R & R, the district court adopted the

magistrate judge’s recommendation to dismiss all claims after receiving no objection

from Graham. To that end, the district court on May 10, 2019, ordered Graham’s



                                            4
action dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i) and (iii) and the

rule in Heck. Id. at 22.

        Graham then filed two motions on May 20, 2019: a “Motion for Extension of

Time to File Written Objections to Magistrate Recommendation” and a “Motion for

Reconsideration and Written Objections to Magistrate Recommendation.” Id. at 25–

29. The district court stated that Graham’s Motion for Reconsideration and Written

Objections to Magistrate Recommendation “was barred from de novo review” due to

his failure to file a timely objection. Id. at 33. But even construing Graham’s motion

liberally as a Fed. R. Civ. P. 59(e) request to alter or amend the judgment, the district

court noted that it had not misapprehended facts, Graham’s position, or the

controlling law. Id. at 35. As a result, the district court stated that it would deny his

motion to reconsider and deny Graham’s motion for additional time as moot. Id. at

36. This appeal followed.

                                   II. DISCUSSION

        Graham seeks to challenge the district court’s dismissal of his Fed. R. Civ. P.

59(e) motion to alter or amend a judgment. The record shows, however, that Graham

did not file timely written objections to the magistrate judge’s R & R. See Fed. R.

Civ. P. 72(b)(2) (“Within 14 days after being served with a copy of the recommended

disposition, a party may serve and file specific written objections to the proposed

findings and recommendations.”). Graham states that he did not receive the April 19,

2019 magistrate recommendation regarding dismissal until April 30, 2019. Aplt. Br.

at 2.

                                            5
      Accepting this timeline as true, Graham should have filed his written

objections no later than May 14, 2019 in order to preserve his ability to appeal both

factual and legal questions. But he failed to do so. And even though the district

court accepted the magistrate’s recommendation to dismiss on May 10, 2019,

Graham still possessed four days to file his objections. In the alternative, he could

have submitted his motion requesting an extension of time—which he filed on May

20, 2019—prior to the 14-day deadline. But he chose not to. Instead, Graham filed

his written objections and a motion requesting an extension of time six days after the

deadline. ROA Vol. I at 25–29.

      Therefore, before we can address the merits, we must turn to the procedural

bar. This court has adopted a “firm waiver rule” which provides that “a party who

fails to make a timely objection to the magistrate judge’s findings and

recommendations waives appellate review of both factual and legal questions.”

Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005) (citing Moore v.

United States, 950 F.2d 656, 659 (10th Cir. 1991)).

      We have recognized two exceptions to the firm waiver rule. Neither applies

here. The first exception is when “a pro se litigant has not been informed of the time

period for objecting and the consequences of failing to object.” Id. The R & R

clearly advised Graham that he had fourteen days to file specific, written objections

and that the failure to do so would waive appellate review. ROA Vol. I at 16.

      The second exception applies when “the ‘interests of justice’ require review.”

Morales-Fernandez, 418 F.3d at 1119. Although it is a “rather elusive concept,”

                                           6
when considering this exception, we have looked at “a pro se litigant’s effort to

comply, the force and plausibility of the explanation for his failure to comply, and

the importance of the issues raised.” Id. at 1120. Graham does not claim to have

been unaware of the filing deadline; rather, he asserts that unscheduled closures of

the law library on three days “exacerabat[ed] the difficulty” of his efforts to file a

response. Aplt. Br. at 2. But he admits that the law library was open three days per

week. Id.

       We conclude that Graham could have filed timely factual challenges—the

same objections he eventually made six days after the deadline expired. He also

could have requested an extension. He did neither of these things. See, e.g., Duffield

v. Jackson, 545 F.3d 1234, 1238 (10th Cir. 2008) (finding that appellant’s failure to

file factual objections or request an extension for time prior to the deadline expiring

resulted in the fault resting on him alone); see also Rounds v. Corbin, 236 F. App’x

402, 404 (10th Cir. 2007) (unpublished) (finding that the combination of appellant’s

access to the law library two days a week along with minimal reliance on precedent

for his objections did not meet the threshold for the interests of justice exception).

       When considering whether the importance of the issues raised might trigger

the “interests of justice” exception, we review the unobjected-to substantive claims

for plain error. See Duffield, 545 F.3d at 1238. To demonstrate plain error, Graham

must show: “(1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial



                                             7
proceedings.” Id. (internal quotation marks omitted). Thus, the first question we

must answer is whether the district court committed error in dismissing Graham’s

§ 1983 petition.

      In his complaint, Graham asserted two claims for relief under 42 U.S.C.

§ 1983. First, he alleged that defendants violated his rights under the Equal

Protection Clause of the Fourteenth Amendment by allowing the revocation of his

parole for the remainder of his sentence to stand because of a technical violation.

ROA Vol. I at 7. In similar fashion, Graham argued that defendants violated his

Fourteenth Amendment Due Process rights by ignoring relevant state law during their

decision to revoke his parole. Id. at 10. He sought monetary damages and an

injunction “ordering his immediate release back onto parole, until he is discharged

from his sentence.” Id. at 9.

      The district court’s adoption of the magistrate judge’s recommendation to

dismiss Graham’s damages claims based on Heck v. Humphrey was proper. It

recognized that Heck bars any claim for damages if the claim’s success “would

necessarily imply the invalidity of [the] conviction or sentence.” 512 U.S. at 487.

The magistrate judge also correctly identified that the rule in Heck applies to parole

revocations. See Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (Heck

“applies to proceedings that call into question the fact or duration of parole or

probation.” (citation omitted)). So if the district court were to have upheld Graham’s

claim for damages against the defendants for their alleged “unlawful restriction of his

liberty” and disregard of Colorado state law during his parole revocation

                                            8
proceedings, it would have necessarily spoken to the invalidity of Graham’s ongoing

confinement. This conclusion would in turn have constituted an order for the

inmate’s “immediate or speedier release into the community.” Wilkinson v. Dotson,

544 U.S. 74, 82 (2005). Because the Supreme Court has repeatedly held that an

inmate in state custody cannot use a § 1983 action to challenge the fact or duration of

his confinement, the district court properly dismissed Graham’s claims for damages.

See id. at 81–82 (“[A] state prisoner’s § 1983 action is barred (absent prior

invalidation)—no matter the relief sought (damages or equitable relief), no matter the

target of the prisoner’s suit (state conduct leading to conviction or internal prison

proceedings)—if success in that action would necessarily demonstrate the invalidity

of confinement or its duration.”).

      And the district court properly dismissed Graham’s claim for monetary

damages, because Parole board members “have absolute immunity ‘from damages

liability for actions taken in performance of the [b]oard’s official duties regarding the

granting or denying of parole.’” Russ v. Uppah, 972 F.2d 300, 303 (10th Cir. 1992)

(quoting another source); see also Giese v. Scafe, 133 F. App’x 567, 569 (10th Cir.

2005) (unpublished) (same). Graham’s complaint clearly identifies each of the three

defendants as Parole Board members—as such, they enjoy absolute immunity and

damages are not available against these defendants under these circumstances.

      Nor may Graham sue the defendants in their official capacities for damages.

Although nominally brought against these state Parole Board members, Graham’s

claim is in reality against the State of Colorado. See Simmat v. U.S. Bureau of

                                            9
Prisons, 413 F.3d 1225, 1232 (10th Cir. 2005) (“Official-capacity suits . . . ‘generally

represent only another way of pleading an action against an entity of which an officer

is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165 (1985))). And

“[n]either states nor state officers sued in their official capacity are ‘persons’ subject

to suit under section 1983.” Duncan v. Gunter, 15 F.3d 989, 991 (10th Cir. 1994)

(citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70–71 (1989)). Thus, the

district court was correct in ruling that the Eleventh Amendment provides immunity

for the defendants in their official capacity against Graham’s claims for damages.

       The district court was also correct in holding that Graham’s request for an

injunction ordering his immediate release from custody is not a cognizable request

for relief in this § 1983 claim. Challenges to the decision to revoke his parole fall

within the purview of the federal habeas statute. See Preiser v. Rodriguez, 411 U.S.

475, 500 (1973) (holding that “when a state prisoner is challenging the very fact or

duration of his physical imprisonment, and the relief he seeks is a determination that

he is entitled to the immediate release or a speedier release from that imprisonment,

his sole remedy is a writ of habeas corpus”); see also United States v. Furman, 112

F.3d 435, 438 (10th Cir. 1997) (noting that challenges to parole procedures “go to the

execution of sentence and, thus, should be brought against defendant’s custodian

under 28 U.S.C. § 2241”).

       Finally, Graham argued that rather than dismiss his claims with prejudice, the

district court should have stayed his action pending further state court proceedings.

ROA Vol. I at 28. But in this case, the district court was able to dispose of Graham’s

                                            10
§ 1983 claims without preventing Colorado courts from first deciding whether

Graham is entitled to an immediate release. See, e.g., Duncan, 15 F.3d at 991

(holding that the court did not need to stay plaintiff’s § 1983 action pending

exhaustion of state judicial remedies, because it could dispose of the damages claims

without deciding the merits of whether the plaintiff was entitled to a speedier

release). Because the defendants enjoy both absolute and Eleventh Amendment

sovereign immunity, the district court did not need to decide the validity of Graham’s

confinement. Thus, because Graham sought damages from defendants immune from

such relief, the district court did not err in dismissing this claim with prejudice. See

28 U.S.C. § 1915(e)(2)(B)(iii).

      The district court did not commit any errors in adopting the magistrate’s

recommendation that Graham’s § 1983 motion be dismissed with prejudice. ROA

Vol. I at 22. While a dismissal under Heck is without prejudice, the district court

properly dismissed Graham’s claims with prejudice under 28 U.S.C.

§ 1915(e)(2)(B)(i) and (iii), because defendants are immune from damages liability

and because injunctive relief requesting immediate release from custody is not a

cognizable claim for relief in a § 1983 action.




                                           11
                                   III. CONCLUSION

       Having carefully reviewed the record, we conclude that Graham has not

identified, nor can we discern, a basis to apply the “interests of justice” exception to

permit appellate review of his claims. The magistrate judge issued a well-reasoned and

well-supported R & R, which the district court adopted. Graham’s appellate brief fails to

show the district court committed any error, let alone a plain error. For the foregoing

reasons, we affirm the judgment of the district court. Additionally, we deny Graham’s

motion to proceed in forma pauperis on appeal. He must pay the full filing fees

immediately.


                                             Entered for the Court


                                             Allison H. Eid
                                             Circuit Judge




                                            12
