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

                             FOR THE TENTH CIRCUIT                          April 25, 2019
                         _________________________________
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court
 DUSTIN DIMMICK,

       Plaintiff - Appellant,

 v.                                                         No. 18-4051
                                                   (D.C. No. 2:13-CV-00794-RJS)
 KRISTIE BOURDON, a/k/a Kristie                               (D. Utah)
 Montrois; ERIC PETERSON; CLARK A.
 HARMS; ANGELA MICKLOS; CURTIS
 L. GARNER; JESSE GALLEGOS;
 ROBERT S. YEATES; MANNY
 GARCIA,

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before BRISCOE, MORITZ, and EID, Circuit Judges.
                  _________________________________

      Dustin Dimmick filed this pro se civil rights suit under 42 U.S.C. § 1983

against various officials connected with the revocation of his parole. The district

court dismissed the action. It determined Dimmick had challenged the fact or

duration of his confinement and should therefore have brought the action as a petition


      *
              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is not binding precedent, except under the doctrines of law of the case, res judicata,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.
for a writ of habeas corpus under 28 U.S.C. § 2241 instead of a § 1983 civil rights

suit. Dimmick appeals the dismissal. We affirm in part, reverse in part, and remand

for further proceedings.

                                   BACKGROUND

      Dimmick is serving a one-to-fifteen year prison sentence, set to expire in

December 2020. In January 2009 he was placed on parole. While on parole, he was

charged with parole violations. He received an evidentiary hearing concerning the

alleged violations. During that hearing, evidence was presented that he had

committed a sexual assault.

      After the hearing, the Utah Board of Pardons and Parole (Board) found

Dimmick guilty of two offenses (violation of a no-contact order and rape/domestic

violence) and it accepted his guilty plea to a third (consumption of alcohol). As a

result of these violations, the Board revoked his parole. In its revocation order, the

Board encouraged Dimmick to seek sex offender treatment. In a later rehearing

order, it indicated it would consider him for earlier release if he successfully

completed a sex offender treatment program.

      At the Utah State Prison, where Dimmick was re-incarcerated, the Board’s

recommendations had serious consequences. Prison authorities prepared a “Case

Action Plan” whose “Priority 1” was to deal with Dimmick’s new status as a sex

offender. R., Vol. I at 465. He was assigned a goal of “[e]liminat[ing] sexually

deviant behavior” by “[s]uccessfully complet[ing] a residential Sex Offender

Treatment Program.” Id. Failure to comply with this directive, according to

                                            2
Dimmick, entails severe adverse consequences in terms of his prison classification

and privileges.

        Dimmick strenuously objected to the Board’s finding that he committed a rape,

its recommendation of sex offender treatment, and the conditioning of his

consideration for early release on his completion of a sex offender treatment

program. Seeking relief from these findings and their consequences, he filed this

suit.

        In his amended civil rights complaint, Dimmick stated that he wanted to be

“left alone” to finish his prison sentence but he vowed he would “continue to fight”

his designation as a “convicted sex offender.” Id. at 145. He complained of alleged

violations of due process in connection with the evidentiary hearing and revocation

of his parole. Ultimately, he requested three forms of relief: (1) removal from the

public record of any and all mention of the Board’s finding of guilt; (2) modification

of his treatment or classification requirements (which he referred to as “mapping”) to

reflect only his offenses of conviction, rather than a designation as a sex offender;

and (3) a new hearing before the Board, without the rape charge.1

        In district court, the parties briefed the merits of Dimmick’s claims, focusing

on whether the Board’s proceedings had violated his constitutional rights. Both



        1
               In a later pleading Dimmick denied he was challenging the revocation
of his parole and stated he did “not want, and [was] not willing to take a ‘Parole.’”
R., Vol. I at 445. But he also complained that the Board’s findings made him
ineligible for parole without completing sex offender treatment. See id. at 453.

                                            3
parties filed motions for summary judgment relating to these issues. Notably, in their

motion, the defendants did not argue that Dimmick’s use of a § 1983 action to pursue

his claims was inappropriate.2

      The district court did not rule on these summary-judgment motions. Instead, it

denied them as moot. Acting sua sponte, it entered a brief order dismissing

Dimmick’s complaint on the grounds that he brought it as a civil-rights complaint

under § 1983 rather than a habeas petition under § 2241. The district court reasoned

that Dimmick “essentially want[ed] the [Board’s] decision overturned” and was

therefore “challenging the fact or duration of his confinement.” R., Vol. I at 490-91

(brackets and internal quotation marks omitted). Such a challenge, it stated, could

only be sought through a writ of habeas corpus.

                                     DISCUSSION

      “The fundamental purpose of a § 2241 habeas proceeding is to allow a person

in custody to attack the legality of that custody, and the traditional function of the

writ is to secure release from illegal custody.” Palma-Salazar v. Davis, 677 F.3d

1031, 1035 (10th Cir. 2012) (internal quotation marks omitted). “In this circuit,

a prisoner who challenges the fact or duration of his confinement and seeks

immediate release or a shortened period of confinement, must do so through an


      2
              In their summary-judgment memorandum defendants included a general
assertion that prisoners who seek to call into question the fact or duration of parole or
probation must pursue a successful action for habeas corpus. Aplt. App., Vol. I
at 356. But they did not argue that Dimmick should not have used a § 1983 action to
obtain the relief he sought or that he was required to pursue his claims through a
§ 2241 petition.
                                            4
application for habeas corpus. In contrast, a prisoner who challenges the conditions

of his confinement must do so through a civil rights action.” Id. (citation omitted).

       To the extent Dimmick’s complaint can be read to seek nullification of the

parole board’s revocation decision in order to obtain his return to parole, we agree

with the district court that his proper remedy is a habeas action under § 2241. See id.

at 1037 n.2 (“This court’s precedents . . . indicate the types of claims cognizable

under § 2241 are those in which an individual seeks either immediate release from, or

a shortened period of, physical imprisonment, i.e., placement on parole or in a parole-

like custodial setting . . . .”). We therefore affirm this aspect of the district court’s

dismissal.

       But Dimmick’s request for a new parole revocation hearing poses a more

nuanced procedural issue, given the rape charge and the procedures concerning that

charge that allegedly denied him due process. The defendants cite Herrera v.

Harkins, 949 F.2d 1096 (10th Cir. 1991), in which we held that “[t]o challenge a

constitutional defect in an individual parole hearing, where the remedy lies in

providing a new parole hearing, a prisoner must file a habeas petition.” Id. at 1097.

But more recent Tenth Circuit cases generally follow the analysis prescribed in

Wilkinson v. Dotson, 544 U.S. 74 (2005), as will we.

       In Wilkinson, a petitioner challenged the use of parole procedures that he

alleged violated the Constitution’s Ex Post Facto and Due Process Clauses. See id. at

77. He sought “a new parole hearing conducted under constitutionally proper

procedures.” Id. After surveying at length its jurisprudence concerning the interplay

                                             5
between § 1983 and habeas proceedings, the Supreme Court held that the prisoner,

who sought “a new parole hearing at which . . . parole authorities may, in their

discretion, decline to shorten his prison term,” had properly proceeded under § 1983

rather than through a habeas petition. Id. at 82. The Court reasoned that granting a

new hearing at which the parole board would exercise its discretion would constitute

neither an order for the prisoner’s “immediate or speedier release into the

community,” nor would it “necessarily demonstrate the invalidity of [his]

confinement or its duration.” Id. The relief he sought therefore fell within the scope

of § 1983 rather than habeas.

      Two examples illustrate how we have applied Wilkinson to parole-related

claims.3 In Conkleton v. Raemisch, 603 F. App’x 713 (10th Cir. 2015), we held that

an inmate could not use a § 1983 action to seek to invalidate the denial of parole. See

id. at 716. But we explained that he could bring a § 1983 claim against prison

officials based on their failure to certify that he had met the sex-offender treatment

criteria for a favorable parole recommendation, because “as in . . . Wilkinson . . . this

claim is not barred . . . because success on this claim would not necessarily entitle

Plaintiff to immediate or speedier release.” Id.

      In Ellibee v. Feleciano, 374 F. App’x 789 (10th Cir. 2010), an inmate whose

parole application had been denied filed a combined complaint under § 1983 and



      3
        Although not precedential, we find the reasoning of these unpublished
decisions to be instructive. See 10th Cir. R. 32.1 (“Unpublished decisions are not
precedential, but may be cited for their persuasive value.”).
                                            6
§ 2241. We determined, citing Wilkinson, that he could proceed under § 1983 to the

extent that “success on [his] civil-rights claims would mean at most a new eligibility

review, which at most will speed consideration of a new parole application.” Id. at

791 (emphasis, brackets, and internal quotation marks omitted). We thus reversed

the district court’s denial of his claim “that the parole board retaliated against him

because of his litigation activities on behalf of himself and other prisoners,” and we

remanded for further proceedings concerning that § 1983 claim. Id. at 792.

      Similar principles apply here. As we understand it, Dimmick’s goal in seeking

a new parole revocation hearing is not so much to obtain earlier release but to obtain

a new decision from the parole board that does not stigmatize him as a rapist or sex

offender. But even if he seeks a new parole revocation hearing in the hope of

eventually being returned to parole, Wilkinson indicates he may pursue a claim under

§ 1983 so long as the Board retains discretion to grant or deny release as a result of

any such hearing (and there is no indication that it does not). See Utah Code Ann.

§ 77-27-11(6)(a) (“Parolees found to have violated the conditions of parole may, at

the discretion of the board, be returned to parole, have restitution ordered, or be

imprisoned again as determined by the board, not to exceed the maximum term, or be

subject to any other conditions the board may impose within its discretion.”). We

therefore reverse the district court’s dismissal of this aspect of Dimmick’s complaint.

      In addition, Dimmick challenges the effects of the Board’s decisions on

aspects of his incarceration (and his life) that do not concern his placement on parole

or release. He complains of the stigma associated with being classified as a sex

                                            7
offender and the obligation to participate in sex offender treatment programs.

Whatever the merits of these claims, they may be pursued in § 1983 proceedings

rather than a habeas petition. See Brown v. Montoya, 662 F.3d 1152, 1167-68

(10th Cir. 2011) (entertaining appeal from denial of qualified immunity in § 1983

action brought by probationer alleging he was wrongfully directed by probation

officer to register as a sex offender and wrongfully placed in the sex offender

probation unit); Gwinn v. Awmiller, 354 F.3d 1211, 1217-24 (10th Cir. 2004)

(addressing sex-offender registration/classification claims brought in § 1983 action).

                                   CONCLUSION

      We affirm in part and reverse in part the district court’s order dismissing

Dimmick’s complaint, and remand for further proceedings in accord with this order

and judgment. We grant Dimmick’s motion to proceed in forma pauperis, and

remind him that he is obligated to continue making partial payments until the entire

fee has been paid in full.


                                           Entered for the Court


                                           Nancy L. Moritz
                                           Circuit Judge




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