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

                             FOR THE TENTH CIRCUIT                           August 31, 2015
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
EDWARD ALLEN,

      Plaintiff - Appellant,

v.                                                          No. 15-1071
                                                (D.C. No. 1:14-CV-01176-RBJ-MJW)
WARDEN FALK, Sterling Correctional                           (D. Colo.)
Facility,

      Defendant - Appellee.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before HOLMES, MATHESON, and PHILLIPS, Circuit Judges.
                 _________________________________

      Plaintiff Edward Allen Clutts1 is a current inmate of the Colorado Department

of Corrections (“CDOC”). Allen filed a civil lawsuit in which he named as

defendants individual parole board members, the Colorado Sex Offender

Management Board (“SOMB”), and James Falk, the former Warden of the Sterling


      *
        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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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
        Throughout this litigation, the plaintiff has been referred to alternatively as
Edward Clutts, Edward Allen, and Edward Allen Clutts. For the purposes of this
order, we will refer to him hereinafter as Allen.
Correctional Facility (“Sterling”), alleging three constitutional violations. The district

court dismissed Allen’s claims in their entirety but—on motion for rehearing—

reinstated the Eighth Amendment claim against Warden Falk. This claim alleged

that—to punish Allen for refusing to participate in sex-offender treatment—Warden

Falk subjected Allen to beatings by fellow prisoners and housed him with gang

members.

      The district court referred Allen’s reinstated Eighth Amendment claim against

Warden Falk to a magistrate judge, who determined that all but one of the supporting

incidents Allen relied upon were barred by the statute of limitations. The magistrate

also determined that Allen’s claim regarding the sole incident not barred by the

statute of limitations was unexhausted. Despite these determinations, however, the

magistrate judge still proceeded to address Allen’s entire Eighth Amendment claim

(comprising all of the complained of incidents) on the merits and concluded that—

even without the statute of limitations and exhaustion issues—Allen had failed to

show a claim for deliberate indifference to an objectively serious risk to his safety.

Since Warden Falk was no longer working at Sterling, the magistrate also determined

that he could not be subjected to the injunction requested by Allen. The district court

adopted this recommendation and dismissed Allen’s sole surviving claim. Allen now

appeals and also seeks to re-raise claims and proceed against parties previously

dismissed. Exercising jurisdiction under 28 U.S.C. § 1291, we AFFIRM.




                                            2
                                     BACKGROUND

      A. Factual Background

      In July 2004 Allen was sentenced to three concurrent terms of ten years to life

imprisonment for sexually assaulting a child while in a position of trust. At

sentencing, the state court concluded that it lacked authority to order Allen to

undergo sex-offender treatment. Once incarcerated, sometime about August 15, 2004,

Allen alleges that his case manager told him that he was recommending that Allen

enter the sex-offender treatment program, and that if Allen did not cooperate he

would be moved to a place where “things can be done.” In 2005 a representative at

the sex-offender program sent Allen a form requiring him to confess to the sex crime

for which he had been convicted. Allen refused to sign and was deemed non-

compliant with sex-offender treatment.

      Allen contends that over the ten years since this incident he has been

repeatedly placed with security-threat-group (“STG”) prisoners who have threatened,

beaten, and attempted to kill him. By the time Allen arrived at Sterling on July 31,

2009, he had already filed a civil case about the violence he had experienced at

previous facilities. As part of this previous case, Allen had told a magistrate judge at

a hearing that he continued to live under threat of violence at Sterling. After this

hearing, Warden Falk moved Allen to a new living unit.

      In his new living unit, Allen contends the violence continued. First, he alleges

that his cellmate told him that other inmates would beat the cellmate if he stayed in a

cell with Allen without fighting him. The prison moved that inmate to another cell,

                                            3
and Allen was assigned a new cellmate named Zamora—who Allen says had gang

affiliations. Although Allen repeatedly complained about Zamora, he says that guards

refused to move either him or Zamora, which allowed Zamora to physically assault

him in their cell. Allen also alleges two additional incidents of violence: (1) on

August 12, 2011, inmate Edward Douglas snuck up behind Allen with a lock in a

sock and beat Allen; and (2) on April 25, 2012, an inmate Allen identifies as having

the last name Windschel attacked Allen in the “gang pod” where Allen was being

held.

        Allen asserts that in his time at Sterling he suffered scars on his face, a broken

rib, and a lost tooth. Despite this, however, Allen states that the Colorado Attorney

General’s Office refused to do anything about the continued threats of violence.

Allen also contends that Warden Falk purposefully housed Allen with STG prisoners,

and that it is common knowledge that STG prisoners beat, attack, and kill sex

offenders.

        B. Procedural Background

        Allen initiated his present action by filing a pro se complaint seeking relief

under 28 U.S.C. § 1343 and 42 U.S.C. § 1983. After a magistrate judge determined

that Allen’s complaint was deficient under Rule 8 of the Federal Rules of Civil

Procedure for failing to allege the personal participation of each named defendant in

the deprivation of Allen’s rights, Allen filed an amended complaint. This amended

complaint asserted three claims for relief: (1) that Allen had twice been denied parole

by the Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth

                                             4
Amendment rights because the Colorado Sex Offender Management Board

(“SOMB”) had deemed him non-compliant with the CDOC’s sex-offender treatment

program for refusing to admit guilt to a sex offense; (2) that unidentified prison

officials had retaliated against him in violation of the Constitution by denying him a

higher paying job because of his refusal to admit a sex offense; and (3) that Warden

Falk had acted with deliberate indifference to Allen’s safety by intentionally placing

him in a living unit with STG inmates who assaulted him because he is a sex

offender.

      The district court initially dismissed all three claims, but eventually reinstated

the third one. Relevant to us here, it dismissed Allen’s first claim for three reasons:

(1) Allen’s request for release on parole is not cognizable in a civil rights action

under 42 U.S.C. § 1983, but must instead be raised in an application for habeas

corpus under 28 U.S.C. § 2241; (2) Allen could not seek damages in a § 1983 action

based on the denial of his parole because a ruling in his favor would necessarily

imply the invalidity of the Parole Board’s decision in contravention of Heck v.

Humphrey, 512 U.S. 477 (1994); and (3) Allen’s claim could not proceed against

SOMB because, as an entity of the State of Colorado, SOMB is entitled to Eleventh

Amendment immunity absent a waiver.

      Allen does not appear to renew his second claim before us, and the district

court’s analysis of the third claim is irrelevant because the court ultimately reinstated

this claim on a motion for reconsideration. After this motion, a magistrate judge

heard Warden Falk’s dispositive motions against Allen’s third claim. The magistrate

                                            5
judge recommended that Allen’s claim against Warden Falk be dismissed for four

reasons: (1) the statute of limitations barred all claims except the incident on April

25, 2012; (2) for the incident on April 25, 2012, Allen had failed to exhaust his

administrative remedies as required by the PLRA; (3) even if the PLRA and the

statute of limitations did not bar Allen’s claim, Warden Falk had Eleventh

Amendment immunity against official-capacity claims; and (4) Allen’s claim did not

show an injury cognizable under the Eighth Amendment. Under de novo review, the

district court fully adopted the magistrate’s recommendation.

      Allen now appeals the district court’s order, and also appears to appeal the

district court’s dismissal of one of his two previous claims. We interpret Allen’s

appellate brief as making three claims before this court:2 (1) that Allen had twice

been denied parole by the Colorado Parole Board, in violation of his Fifth, Eighth,

and Fourteenth Amendment rights because the SOMB had deemed him non-

compliant with the CDOC’s sex-offender-treatment program because he refused to

admit guilt to a sex offense; (2) that requiring Allen to admit having committed a sex

offense as part of his sex-offender treatment violates his Fifth Amendment rights; and

(3) that Warden Falk acted with deliberate indifference to Allen’s safety by

intentionally placing him in a living unit with STG inmates who assaulted him

because he is a sex offender.


      2
        Allen’s brief does not make precisely clear the exact bases for his appeal or
exactly what he is appealing. But because he is a pro se plaintiff we liberally construe
his pleadings. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972); Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991).
                                            6
                                         DISCUSSION

         A. Denial of Parole

         As noted above, Allen’s first claim before the district court—which was

dismissed previously—alleged that Allen had twice been denied parole by the

Colorado Parole Board, in violation of his Fifth, Eighth, and Fourteenth Amendment

rights because the SOMB had deemed him non-compliant with the CDOC’s sex-

offender-treatment program for refusing to admit guilt to a sex offense. Allen’s brief

before this court appears to renew at least part of this claim, asking for relief in the

form of an “[o]rder [to] the Parole-board to release the plaintiff to parole.” Before

this court, it does not appear that Allen requests compensatory damages as he did

before the district court.

         We believe the district court correctly dismissed this claim because it is not

cognizable in a civil rights action under 42 U.S.C. § 1983. If Allen desires to attack

the “fact or duration of his confinement,” he cannot do so in a § 1983 action. Preiser

v. Rodriguez, 411 U.S. 475, 489–90 (1973). Rather, he must—in a separate

proceeding—file an application for habeas corpus under 28 U.S.C. § 2241 and allege

that the execution of his sentence violates federal law. See Davis v. Roberts, 425 F.3d

830, 833 (10th Cir. 2005). We affirm the district court’s dismissal of Allen’s first

claim.

    B. Requirement to Admit a Sex Offense

    Allen’s second claim—which it appears the district court considered in

dismissing his first claim for relief in his initial complaint—attacks the SOMB’s

                                             7
requirement that he admit guilt to a sex offense as part of his completing sex-offender

treatment. The district court dismissed this claim because it found that, as an entity of

the state, SOMB has Eleventh Amendment immunity absent a waiver. When Allen

claimed in his motion for reconsideration that he was seeking to sue the SOMB

members in their individual capacities, the district court additionally determined that

the defendants had not violated Allen’s Fifth Amendment rights by requiring that he

admit guilt to a sex offense because this requirement served a legitimate penological

interest.

       We believe both of these rationales have merit, but we address only the second

one because it would hold true regardless of whether Allen’s claim was against

SOMB officials in their individual or official capacities. We agree that Allen cannot

allege a violation of his Fifth Amendment rights on these facts. First, we note that the

Supreme Court has held that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). And, second, in Doe

v. Heil, 533 F. App’x 831 (10th Cir. 2013) (unpublished), a case challenging

Colorado’s prison regulations that required full disclosure of sexual history as part of

a sex-offender-treatment program, we concluded that Colorado furthered its

legitimate penological interest in rehabilitating sex offenders “by requiring them,

without regard to their Fifth Amendment stake in avoiding self-incrimination, to

submit to a polygraph and admit their full sexual history.” Id. at 839–840. Allen

provides us with no basis to vary from this holding.

                                             8
      C. Eighth Amendment Claim Against Warden Falk

      Allen’s final claim is that Warden Falk acted with deliberate indifference to

Allen’s safety by intentionally placing him in a living unit with STG inmates who

assaulted him because he is a sex offender. Before we can reach any of the arguments

Allen makes on the merits regarding this claim, however, we have an independent

duty to confront the issue of our own jurisdiction. Amazon, Inc. v. Dirt Camp, Inc.,

273 F.3d 1271, 1274 (10th Cir. 2001). Here, we perceive two jurisdictional questions

based on the parties’ briefs and the judgments below: (1) whether Allen timely filed a

Notice of Appeal and (2) whether Allen administratively exhausted his claim under

the PLRA. We will consider each of these arguments in turn.3

      One prerequisite to our appellate jurisdiction is the timely filing of a Notice of

Appeal. United States v. Cebbalos-Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004).

Here, Allen needed to deposit his Notice of Appeal in the prison mail system within

thirty days after the entry of judgment. See Fed. R. App. P. 4. Warden Falk

challenges Allen’s timeliness, pointing out that the district court issued its Order and

Judgment on January 12, 2015. He claims this means that Allen needed to deposit his

Notice of Appeal in the prison mail system by February 11, 2015. Allen’s Notice of

Appeal is dated February 24, 2015 and was filed on March 2, 2015.

      3
        Our decision to address these specific jurisdictional issues should not be read
to suggest that the other threshold concerns raised by Warden Falk do not have merit.
Given our “leeway ‘to choose among threshold grounds for denying audience to a
case on the merits,’” we simply choose to consider only these particular jurisdictional
questions, which are sufficient to fully dispose of this claim. Sinochem Intern. Co. v.
Malaysia Intern. Shipping Corp., 549 U.S. 422, 431 (2007) (quoting Ruhrgas AG v.
Marathon Oil Co., 526 U.S. 574, 585 (1999)).
                                           9
      We conclude that Allen filed a timely Notice of Appeal. As Warden Falk

notes, the district court entered judgment on January 12, 2015. But Warden Falk fails

to acknowledge that Allen filed a motion for rehearing on February 2, 2015. Under

Fed. R. App. P. 4(a)(4)(iv), the thirty-day clock for Allen to file his Notice of Appeal

did not begin to run until the court ruled on Allen’s motion. The court ruled on

Allen’s motion for rehearing on February 4. Allen’s Notice of Appeal was dated

February 24 and filed on March 2, well within this thirty-day limit.

      But on the second jurisdictional issue, Allen does not fare so well. The PLRA

provides that “[n]o action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a) (2012). The PLRA requires dismissal

where a litigant has failed to exhaust before suing. See Fitzgerald v. Corrections

Corp. of Am., 403 F.3d 1134, 1140–41 (10th Cir. 2005). In its regulations, the CDOC

has a multi-step grievance process that includes a written informal grievance

followed by a formal three-step written grievance procedure, see Colorado

Department Of Corrections, Administrative Regulation 850-4 (2015) (hereinafter

“AR 850-4”), and we require that an inmate must appeal through all available

channels to exhaust administrative remedies. See Jernigan v. Stuchell, 304 F.3d 1030,

1032 (10th Cir. 2002). There is, however, an exception to the exhaustion requirement

when an inmate is prohibited from filing a grievance. See id. On two grounds, Allen

claims that he has satisfied his exhaustion requirements.

                                           10
      First, before both the district court and this court, Allen asserts that he did in

fact file grievances. But as the magistrate noted, Allen appears to rely on grievances

filed years before the incidents he now complains about. These stale grievances

cannot serve to exhaust his remedies for later incidents.

      Second, Allen claims that he attempted to file grievances but was kept from

doing so. Again, however, the magistrate correctly notes a fatal flaw in this

argument: Colorado’s administrative regulation requires that inmates must file their

first grievance “within 30 days of the discovery of the issue or complaint. . . .” AR

850-4. This means that, at latest, Allen needed to file a grievance for the last of his

identified incidents by May 25, 2012. Based on our reading of the record, the only

time Allen claims he attempted to file a grievance and was denied this right was on

March 19, 2014, nearly two years after he needed to do so.

      For these reasons, we agree that Allen has not exhausted his administrative

remedies regarding his Eighth Amendment Claim against Warden Falk. We therefore

lack jurisdiction under the PLRA to consider this claim.4

      Leave to Proceed in Forma Pauperis

      Allen also petitions this court to grant him pauper status. Under 28 U.S.C.

§ 1915, any court of the United States may grant pauper status to “allow indigent

persons to prosecute, defend or appeal suits without prepayment of costs.” Coppedge

      4
         Although concluding it lacked jurisdiction under the PLRA, the magistrate
court still considered the merits of Allen’s Eighth Amendment claim to explain why
the claim should be dismissed if it indeed had jurisdiction. While we agree with the
magistrate’s analysis, we decline to further consider the merits of Allen’s claim given
our finding that we lack jurisdiction to consider the claim under the PLRA.
                                           11
v. United States, 369 U.S. 438, 441 (1962). Here, under 28 U.S.C. § 1915(a)(3), the

district court certified that any appeal would not be taken in good faith and denied

Allen’s motion to proceed in forma pauperis on appeal. In light of that action, we

will only grant pauper status if we conclude that the appeal contains a non-frivolous

argument. See Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079 (10th

Cir. 2007).

         Turning to Allen’s motion, we believe that this appeal is not taken in good

faith and that Allen has failed to show the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal. We remind

Allen that he must pay the filing and docket fees in full to the clerk of the district

court.


                                             Entered for the Court


                                             Gregory A. Phillips
                                             Circuit Judge




                                            12
