Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. ___________

RANDAL ANKENEY, individually and on behalf of all others similarly situated; FRED DALE, individually and on behalf of all others similarly situated; DAMAN THOMPSON, individually and on behalf of all others similarly situated; ALEJANDRO PEREZ, individually and on behalf of all others similarly situated, Plaintiffs, v. STATE OF COLORADO, RICK RAEMISCH, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity; ROGER WERHOLTZ, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity; TONY CAROCHI, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity; TOM CLEMENTS, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity by and through his ESTATE; ARISTEDES ZAVARIS, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity; JOE ORTIZ, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity; and JOHN SUTHERS, in his official capacity as Executive Director of the Colorado Department of Corrections, and in his individual capacity. Defendants.

COMPLAINT AND JURY DEMAND

1

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 2 of 17

Plaintiffs, Randal Ankeney, Fred Dale, Daman Thompson, and Alejandro Perez individually and on behalf of all others similarly situated, by and through their attorneys, David A. Lane and Danielle C. Jefferis of KILLMER, LANE & NEWMAN, LLP, respectfully alleges for their Complaint and Jury Demand as follows: INTRODUCTION 1. This is a case which will likely become a class action involving how the Colorado

Department of Corrections, (“CDOC”) by and through the named defendants, calculates mandatory release dates (“MRD”) for thousands of offenders. 1 2. It is generally alleged in this action that the correct method of calculating mandatory

release dates under Colorado law is to take the number of years an offender is sentenced to, subtract all time actually served and further reduce the ultimate sentence by any earned time and good time the offender has accrued from the ultimate sentence imposed by the court and that date becomes the offender’s mandatory release date. 3. CDOC correctly believes that it is within its discretion whether or not to award any

inmate good time or earned time. The Plaintiffs concede this fact. 4. The heart of this Complaint however, is that once an inmate has earned good time or

earned time, it must be actually applied to their release dates. CDOC has taken the position that not only does it have the discretion to award earned and good time, but it is within its discretion as to whether or not to apply it to any inmate’s release date. 5. The Defendants, as former and current Executive Directors of CDOC, have set and

implemented a policy of routinely refusing to subtract previously credited good time as well as
1

This case does not involve sex offenders or any inmate serving indeterminate sentences who fall under a different parole scheme.

2

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 3 of 17

some previously credited earned time from inmates’ sentences despite the fact that the inmate has earned those credits. 6. 7. It is believed that possibly thousands of plaintiffs may be similarly situated. On information and belief, it is alleged that if an MRD is deemed too far out

discretionary parole is often denied an inmate; the security levels of many inmates are impacted by the erroneous calculations of their MRDs as DOC routinely looks at the MRD in determining housing for inmates; and programming available to inmates is determined in part by a calculation of an inmate’s MRD. 8. On information and belief it is the policy of CDOC to calculate the parole eligibility

dates (“PEDs”), MRDs and statutory discharge dates (“SDDs “) (the date of parole termination) of every inmate in the system in precisely the same way they calculated Mr. Ankeney’s dates, except for various classes of inmates who are either never eligible for release or sex offenders who have a different system applied to their release dates. 9. It appears that there are currently approximately 20,000 inmates being held within

CDOC and literally thousands of them may have passed their MRDs yet they are still incarcerated. 10. It is also alleged in this Complaint that when discretionary parole is considered for an inmate, the Parole Board looks at the MRD for that inmate and if it is too far down the road, that factors in heavily in the determination as to whether or not to grant discretionary parole. The MRD is a significant factor in determining the quality of life for any inmate and whether that inmate may be in numerous programs as well as the level of security confronting any inmate.

3

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 4 of 17

11. Similarly, CDOC uses an inmate’s MRD to determine what programs or jobs any inmate is eligible for and what custody level an inmate should be housed in. 12. The further away an inmate’s MRD, the fewer the programs and jobs available to that inmate and the higher the custody level will be for that inmate. 13. It is believed that Mr. Ankeney was possibly denied discretionary parole once he reached his PED because his MRD was perceived as being so far into the future. 14. The miscalculations of MRDs leads to miscalculations of SDDs. 15. Mr. Ankeney should have been given an MRD of October 28, 2010, or sooner than the date he was actually released, and he should have commenced his mandatory three years of parole at that time. Mr. Ankeney was just terminated from parole pursuant to a state habeas petition which was granted by the district court in Freemont County which was based upon the ruling of the Colorado Court of Appeals attached to this Complaint. 16. Accordingly, Mr. Ankeney is no longer under the control of CDOC because the state court adjusted his MRD and his SDD and ordered his discharge. 17. It is believed that thousands of inmates are misclassified by CDOC are being denied discretionary parole, have fewer desirable programs available to them, and have higher security classifications than they would otherwise have because their MRDs are miscalculated by CDOC. 18. It is believed that thousands of inmates who were held beyond their MRDs were unlawfully placed under the auspices of the CDOC while on parole and they received no credit for the extra time they were incarcerated against their mandatory parole periods. PARTIES

4

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 5 of 17

19. At all times relevant to this Complaint, Plaintiffs are prisoners incarcerated within the CDOC except for Mr. Ankeney who was recently released from incarceration and parole supervision. 20. At all times relevant to this Complaint, Defendants were residents of Colorado serving as the Executive Directors of the Colorado Department of Corrections and were responsible and each did in fact individually participate in the implementation of all DOC customs, practices and policies and for applying the time computations required by law as applied to all DOC inmates. JURISDICTION AND VENUE 21. This action arises under the Constitution and laws of the United States, including Article III, Section 1 of the United States Constitution and 42 U.S.C. § 1983. Jurisdiction is conferred on this Court pursuant to 28 U.S.C. §§ 1331 and 1343. Jurisdiction supporting Plaintiffs’ claims for attorney fees is conferred by 42 U.S.C. § 1988. 22. Venue is proper in the District of Colorado pursuant to 28 U.S.C. § 1391. Defendants are subject to personal jurisdiction in the District of Colorado, and a substantial part of the events at issue in this lawsuit took place in the District of Colorado. RELEVANT STATUTES 23. Under Colorado law, inmates are awarded time off their sentences in several ways. • C.R.S. § 17-22.5-301(1) and (3) – good time - reduces a sentence by fifteen

days per month if the inmate has “substantially observed all of the rules and regulations of the institution or facility in which he has been confined and has faithfully performed the duties assigned to him.” This is known as “good time” and Plaintiffs claim this was not applied to their MRDs. Pursuant to (3), good time is mandatory in the absence of violations;

5

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 6 of 17

C.R.S. § 17-22.5-302 – earned time - reduces an inmate’s time by 30 days for

every six months served based upon an inmate showing “substantial and consistent progress in work and training, group living, counseling sessions and self-help groups, and the goals and programs established by the Colorado diagnostic program.” • • C.R.S. § 17-22.5-403 – earned time – under the discretionary parole statute; C.R.S. § 17-22.5-405 – earned time – 10 days per month “if the inmate makes

substantial progress in matters such as work and training” or educational courses, and Plaintiffs’ claim that this was not applied to and deducted from their MRDs. • C.R.S. § 18-1.3-401(1)(a)(V)(A) – Mandatory parole statute which applies to

Ankeney and all other Plaintiffs. FACTUAL ALLEGATIONS Randal Ankeney 22. Randal Ankeney’s case best illustrates the issues confronting this court and was the subject of the attached unpublished opinion from the Colorado Court of Appeals. 2 Mr. Ankeney, a Plaintiff in this action, pled guilty to a class 4 felony from Larimer County, Colorado, case number 06CR1548 and was sentenced to eight years of incarceration to be followed by three years of mandatory parole. He pled guilty in Arapahoe County, Colorado to a class 5 felony and was sentenced to three years of incarceration to be followed by two years of mandatory parole. The cases were unrelated but were part of a global plea agreement. Both sentences were to run concurrently with one another. 23. When Mr. Ankeney was considered for parole, he was informed that the CDOC and the parole authorities would not apply the good time and some earned time even though it had
2

The attached opinion is unpublished and under Colorado Court rules it cannot be cited for precedential value, however it sets forth the basic argument advanced by Plaintiffs in this action and will assist this Court in understanding some of the complex issues contained herein.

6

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 7 of 17

previously been awarded to him. This has the effect of lengthening his mandatory release date (“MRD”). On information and belief, the CDOC calculates the MRDs of all inmates in this manner. 24. It is contended in this lawsuit that Mr. Ankeney, and all others similarly situated, have a vested liberty interest in all of the good and earned time which has been awarded to them under statute. While CDOC has discretion in whether to award good time or earned time, once it is awarded, it must be applied. As such, CDOC held Mr. Ankeney beyond his mandatory release date in violation of the Fourth, Eighth and Fourteenth and Amendments to the United States Constitution. 25. CDOC, when determining parole eligibility dates and mandatory release dates considers the longest sentence to be the controlling sentence for date calculations. 26. He alleges that his MRD should have been on or around October 28, 2010 while CDOC claims that the date should be August 28, 2013, when he was actually released from prison. 27. C.R.S. § 18-1.3-401(1)(a)(V)(A) states that anyone sentenced after July 1, 1985 (which includes Mr. Ankeney and all Plaintiffs in this case) “shall be subject to the provisions” set forth above.” (emphasis added). Good time may be withheld or deducted by CDOC for rule violations or other misconduct, however that did not apply to Mr. Ankeney and DOC awarded him all of his good time. They failed, however to apply it to his MRD despite having awarded it to him. 28. Pursuant to C.R.S. § 17-22.5-301(3), good time must be awarded and may only be withheld or deducted when an inmate fails to substantially observe the rules and regulations of

7

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 8 of 17

CDOC, and/or fails to perform the duties assigned. Again, the exception did not apply to Mr. Ankeney or the other plaintiffs in this case. 29. C.R.S. § 17-22.5-302 mandates that “in addition to the good time authorized in section 17-22.5-301, earned time, not to exceed thirty days for every six months of incarceration, may be deducted from the inmate’s sentence contingent upon the inmate making substantial and consistent progress in work and training, group living, counseling sessions and self-help groups, and the goals and programs established by the Colorado diagnostic program.” Again, Mr. Ankeney earned and/or was awarded this earned time, however CDOC refused to apply it to his MRD despite having awarded it to him. 30. C.R.S. § 17-22.5-302(1.5)(a) mandates that “an inmate who makes positive progress…in the correctional education program established pursuant to section 17-32-105, shall receive earned time pursuant to section 17-22.5-405” in addition to the thirty days of earned time authorized in section 17-22.5-302. 31. C.R.S. § 17-22.5-405 provides that “earned time, not to exceed ten days for each month of incarceration or parole, may be deducted from the inmate’s sentence” provided that the inmate demonstrates consistent progress in work, training, group living, counseling sessions and self-help groups, the goals and programs established by the Colorado diagnostic program and/or the correctional education program established by section 17-32-105. 32. CDOC has established Administrative Regulations (“ARs”) which govern the award of earned time, specifically AR 550-12. 33. There are no ARs governing good time.

8

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 9 of 17

34. Mr. Ankeney has met all requirements for receiving fifteen days of good time per month pursuant to C.R.S. § 17-22.5-301 as well as all requirements for receiving thirty days of earned time for every six months of incarceration pursuant to C.R.S. § 17-22.5-302. 35. Mr. Ankeney has also met all requirements to receive ten days of earned time per month pursuant to C.R.S. § 17-22.5-405. 36. Mr. Ankeney while incarcerated faithfully performed all duties assigned to him including work, volunteering, and therapy and he substantially observed all of the rules and regulations of the Freemont Correctional Facility. In short, Mr. Ankeney lived up to his end of the bargain and his mandatory release date should have been calculated by taking his eight year sentence, and subtracting all earned time and all good time from that eight years. 37. In figuring out Mr. Ankeney’s mandatory release date, contrary to law, the CDOC refused to deduct the good time which Mr. Ankeney had previously earned pursuant to C.R.S. § 17-22.5-302, nor any earned time pursuant to C.R.S § 17-22.5-302. 38. CDOC uses several controlling dates for determining the custody status of an inmate. 39. CDOC calculates an inmate’s parole eligibility date (“PED”) when they are first eligible for discretionary release. They are required by law to calculate an inmate’s mandatory release date (“MRD”) which is the sentence imposed less earned and good time CDOC gives an inmate. The inmate must be released from prison at that point but is still subject to mandatory parole. They calculate an inmate’s statutory discharge date (“SDD”) which is the number imposed by the court at sentencing which includes the time of incarceration and any statutorily imposed mandatory period of parole.

9

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 10 of 17

40. The primary issue in this case is that CDOC believes that it has the authority to use its discretion in whether or not to apply to the MRD credit for earned or good time after CDOC has awarded an inmate that time. Mr. Ankeney alleges herein that once CDOC has awarded an inmate that time, that inmate has a liberty interest in it, thus CDOC must credit it for determining the inmate’s MRD. 41. Mr. Ankeney’s status at CDOC was reviewed on June 24, 2011 and reflected his excellent progress and behavior. Mr. Ankeney had previously seen the Parole Board which denied him discretionary release. 42. On August 29, 2011, Mr. Ankeney again saw the Parole Board. The MRD being used by the Parole Board for Mr. Ankeney showed that his MRD was July 18, 2014. This MRD was calculated by deducting ten days of earned time from each month of his sentence which had been served pursuant to C.R.S. § 17-22.5-405. His MRD however reflected no good time pursuant to C.R.S. § 17-22.5-301 or earned time pursuant to C.R.S. § 17-22.5-302. 43. If properly calculated, using all presentence confinement credit given to Mr. Ankeney, as well as all of his earned time and his good time, Mr. Ankeney’s MRD was on or about November 19, 2011. 44. Mr. Ankeney was not released from prison however, until August 28, 2013. Mr. Ankeney served a sentence of imprisonment of approximately 21 months beyond what he should have served. 45. In January of 2012, Mr. Ankeney filed a Petition for a Writ of Habeas Corpus with the Freemont County district court, captioned Ankeney v. Clements, et. al. That Petition was dismissed by the district court.

10

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 11 of 17

46. Mr. Ankeney filed an appeal with the Colorado Court of Appeals and in an unpublished opinion filed on August 22, 2013 in Ankeney v. Raemish et. al., 12CA1930, (see attached opinion) a unanimous court reversed the dismissal and essentially agreed that every averment set forth in this Complaint was a correct statement of the law. Fred Dale 47. Fred Dale was sentenced to two consecutive ten years DOC stemming from an

incident in Boulder County. 48. DOC has presumably calculated his MRD incorrectly and his time computation sheets show no credit for any good time despite Mr. Dale never having lost any good time. 49. Mr. Dale’s custody status and programming is impacted by his MRD. If good time were properly credited to Mr. Dale, his MRD would possibly have already passed. Daman Thompson 50. Mr. Thompson is serving a 15 year DOC sentence consecutive to a 10 year DOC sentence stemming from convictions in 2006. 51. DOC has presumably calculated his MRD incorrectly and his time computation sheets show no credit for any good time despite Mr. Thompson has never lost any good time. 52. Mr. Thompson’s custody status and programming is impacted by his MRD. If good time were properly credited to Mr. Thompson, his MRD would be much sooner than DOC records indicate. Alejandro Perez 53. Mr. Perez is serving a 32 year DOC sentence which commenced in 1997.

11

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 12 of 17

54. DOC has presumably calculated his MRD incorrectly and his time computation sheets show no credit for any good time despite Mr. Perez being entitled to a significant amount of good time. 55. Mr. Perez’s custody status and programming is impacted by his MRD. If good time were properly credited to Mr. Perez, his MRD would be very close or possibly passed. STATEMENT OF CLAIMS FOR RELIEF FIRST CLAIM FOR RELIEF 42 U.S.C. § 1983 Fourth Amendment – Unlawful Seizure (Against All Defendants) 56. Plaintiffs hereby incorporate all other paragraphs of this Complaint as if fully set forth herein. This claim applies specifically to Mr. Ankeney who was held beyond his MRD and for any other Plaintiff who is being held beyond his MRD. At this time it is unclear which if any of the remaining Plaintiffs are being held beyond their MRD, however this claim will form the basis for a motion to certify a class of such inmates currently incarcerated at DOC. 57. At all times relevant to this Complaint, Defendants acted under color of state law in their capacities as Directors of the Colorado Department of Corrections. 58. The actions of Defendants as described herein, while acting under color of state law, intentionally deprived Plaintiffs Ankeney and all those similarly situated of the securities, rights, privileges, liberties, and immunities secured by the Constitution of the United States of America, including their right to freedom from unlawful seizure as guaranteed by the Fourth Amendment to the Constitution of the United States of America and 42 U.S.C. § 1983 in that the Defendants unlawfully held Plaintiff Ankeney and all others similarly situated beyond their MRDs and

12

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 13 of 17

SDDs without probable cause or reasonable suspicion to believe they had committed any offense which would have permitted additional incarceration. 59. Defendants’ actions were objectively unreasonable in light of the circumstances confronting them. 60. Defendants intentionally, knowingly, recklessly, and excessively restrained, detained, and falsely imprisoned Plaintiffs without any reasonable suspicion or probable cause or any court order permitting such incarceration. 61. Defendants’ conduct violated Plaintiffs’ clearly established rights of which reasonable prison officials knew or should have known. 62. Plaintiffs have been and continue to be damaged by Defendants’ false arrest/unlawful seizure of them. 63. The acts or omissions of each Defendant, including the unconstitutional policy, procedure, custom, and/or practice described herein, were the legal and proximate cause of Plaintiffs’ actual injuries, damages, and losses in an amount to be proven at trial. 64. Each defendant in this case personally and individually was charged with faithfully executing the laws of the State of Colorado and applying all statutorily mandated credits to every Plaintiff. 65. All defendants personally and individually adopted a custom, practice or policy of ignoring the mandates of the law and ordering that inmates not be released despite having enough earned and good time credits to warrant their release from prison, or a reduction in custody level or receiving programming available from CDOC. 13

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 14 of 17

SECOND CLAIM FOR RELIEF 42 U.S.C. § 1983 (14th Amendment Procedural and Substantive Due Process Violations) (Against All Defendants) 66. Plaintiff hereby incorporates by reference all paragraphs of this Complaint as if fully set forth herein. 67. Defendants were acting under color of state law in their actions and inactions which occurred at all times relevant to this action. 68. Plaintiffs and all others similarly situated have a protected liberty interest in freedom from incarceration by the State except upon conviction after a trial that complies with all constitutional requirements. 69. Plaintiffs and all others similarly situated have a liberty interest in having the Defendants correctly calculate their PEDs, MRDs and SDDs, as their very freedom is at stake from the correct calculations of these dates. 70. By failing to follow the statutes of the State of Colorado, each Defendant, as detailed above was acting recklessly, knowingly, intentionally, willfully and wantonly, and played a personal and essential role in ensuring that Plaintiffs’ incarceration, and all others similarly situated, continued beyond what it was statutorily authorized to be. 71. The actions by Defendants described herein recklessly, knowingly, intentionally, willfully and wantonly caused 72. The actions by Defendants described herein deprived all Plaintiffs and those similarly situated the opportunity to obtain less secure housing assignments, discretionary parole release, educational and program opportunities which had their time been correctly calculated would have been available to them.

14

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 15 of 17

73. The actions of the defendants in miscalculating time computations for all Plaintiffs and all others similarly situated is so egregious and are so shocking to the judicial conscience, that they constituted deprivation of Constitutional dimension. 74. Defendants were the policy makers of CDOC and were therefore responsible for the implementation and execution of all of the laws of the State of Colorado relating to their duties as Executive Directors of the CDOC. They each officially and individually, recklessly, knowingly, intentionally, willfully and wantonly, participated in, knew of, condoned and/or approved the wrongful miscalculations of MRDs described herein, with the intent and understanding to bring about Plaintiffs and those similarly situated, unconstitutional continued confinement. 75. Given the long-term and widespread nature of the acts described herein, each Defendant knew of a substantial risk to Plaintiffs and all others similarly situated unconstitutional incarceration. 76. As described above, Defendants had long-standing, department-wide customs, policies, and/or actual practices that allowed the acts described in this Complaint to occur. 77. The customs, policies, and/or actual practices that allowed the unconstitutional incarceration of Plaintiffs and all others similarly situated, described herein, were necessarily consciously approved by Defendants and represent a deliberate choice to follow a course of action made from among various alternatives, and were the moving force behind the constitutional violation at issue. 78. The acts or omissions, of each Defendant, including the polices, customs, and/or actual practices described above, were the legal and proximate cause of Plaintiffs’ and all others similarly situated unconstitutional confinement, causing injuries alleged herein.

15

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 16 of 17

THIRD CLAIM FOR RELIEF (Eighth Amendment violation – all defendants) 79. Plaintiff hereby incorporates by reference all paragraphs of this Complaint as if fully set forth herein. 80. Defendants were acting under color of state law in their actions and inactions which occurred at all times relevant to this action. 81. Defendants by holding Plaintiff Ankeney and all prisoners beyond their mandatory release dates have inflicted cruel and unusual punishment upon the Plaintiffs, in violation of the Eighth Amendment to the United States Constitution. WHEREFORE, Plaintiffs respectfully requests that this Court enter judgment in his favor and against Defendants, and grant: a) Appropriate declaratory and other injunctive and/or equitable relief as to each

Defendant in his official capacity; b) Compensatory and consequential damages, including damages for emotional

distress, humiliation, loss of enjoyment of life, and other pain and suffering on all claims allowed by law in an amount to be determined at trial from all Defendants named in their individual capacities; c) All economic losses on all claims allowed by law from all Defendants named in their

individual capacities; d) Punitive damages on all claims allowed by law and in an amount to be determined at trial from all Defendants named in their individual capacities; e) f) Attorneys fees and the costs associated with this action on all claims allowed by law; Pre- and post-judgment interest at the lawful rate.

16

Case 1:14-cv-00007-BNB Document 1 Filed 01/02/14 USDC Colorado Page 17 of 17

g)

Any further relief that this court deems just and proper, and any other relief as

allowed by law. PLAINTIFF REQUESTS A TRIAL TO A JURY ON ALL ISSUES SO TRIABLE. Dated this 2nd day of January, 2014. KILLMER, LANE & NEWMAN, LLP

s/ David Lane David A. Lane Danielle C. Jefferis KILLMER, LANE & NEWMAN, LLP 1543 Champa Street, Suite 400 Denver, Colorado 80202 (303) 571-1000 dlane@kln-law.com djefferis@kln-law.com

ATTORNEYS FOR PLAINTIFF

17

Sign up to vote on this title
UsefulNot useful