*

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

unanimously that oral argument would not materially assist 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not binding precedent except under the doctrines of law of the case, res judicata,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

(continued...)

FILED

United States Court of Appeals

Tenth Circuit

March 4, 2008

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAY ALLEN FREY, also known as

Jeff Lemley, also known as Jay A.

Lemley, also known as Aaron Lemley,

also known as Aaron Frey,

Plaintiff - Appellant, No. 07-1326

v. (D. Colorado)

ADAMS COUNTY COURT

SERVICES; JOHN DOE & JANE

DOE 1-10; CAPTAIN GONZALES;

COMPLETE CASE MANAGEMENT

STAFF OF D.O.C.; JOHN DOE &

JANE DOE 10-20; 17TH JUDICIAL

DISTRICT COURT; ADAMS

COUNTY JUDGE HARLON R.

BOCKMAN; COLORADO

DEPARTMENT OF CORRECTIONS;

ARISTEDES W. ZAVARAS; U.S.

DEPARTMENT OF JUSTICE; U.S.

ATTORNEY JUDITH SMITH;

GOVERNOR BILL RITTER, Colo.

D.O.C. [sic],

Defendants - Appellees.

(D.C. No. 07-cv-00679-ZLW)

ORDER AND JUDGMENT*
*

(...continued)

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

-2-

Before LUCERO, HARTZ, and GORSUCH, Circuit Judges.

Jay Allen Frey, an inmate in the custody of the Colorado Department of

Corrections (CDOC), filed an action under 42 U.S.C. § 1983 in the United States

District Court for the District of Colorado against the CDOC and various federal

and Colorado agencies and officials, contending that the defendants violated his

constitutional rights. The district court dismissed Mr. Frey’s complaint as

frivolous under 28 U.S.C. § 1915(e)(2)(B) and denied him permission to proceed

in forma pauperis on appeal, see § 1915(a)(3). Mr. Frey appeals the court’s

dismissal. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Mr. Frey pleaded guilty in federal court on December 1, 2005, to unlawful

possession of a firearm by a prohibited person, see 18 U.S.C. § 922(g), and was

sentenced on March 9, 2006, to 57 months’ imprisonment. On July 27, 2006, he

was convicted in Colorado state court of vehicular eluding, child abuse, and

driving under the influence, and was sentenced to four years’ imprisonment. The

state judgment provides that his “sentences are to be served in federal prison.” R.

Doc. 10 at 10.
-3-

On April 30, 2007, Mr. Frey filed his initial § 1983 complaint, in which he

raised various claims regarding his convictions, prison conditions, and the

execution of his sentences. Because the district court found Mr. Frey’s complaint

“prolix and confusing,” R. Doc. 8 at 2, it ordered him to file an amended

complaint. The court advised him, among other things, that he may challenge

conditions of confinement under § 1983, the validity of his conviction or sentence

under 28 U.S.C. § 2254, and the execution of his sentence under 28 U.S.C.

§ 2241.

On July 3, 2007, Mr. Frey filed an amended complaint. He limited his

claims to the following: (1) that his federal sentence should be served

concurrently with his state sentence and (2) that he should be serving his federal

and state sentences in federal custody. He sought injunctive relief and damages. 

Attached to the amended complaint is a memorandum from a case manager

supervisor at the CDOC, which states that he is to serve his Colorado sentence

before serving his federal sentence and that his federal sentence is to be served

consecutively to his state sentence.

We review a dismissal under § 1915(e)(2)(B) for an abuse of discretion. 

See Schlicher v. Thomas, 111 F.3d 777, 779 (10th Cir. 1997) (applying abuse-ofdiscretion standard to dismissal under § 1915(d), now codified at

§ 1915(e)(2)(B)(I)). We first consider his claim that his sentences should be

served concurrently. To the extent that he seeks injunctive relief, success on this
-4-

claim would result in a speedier release from custody, so the claim cannot be

pursued under § 1983 but must be pursued as a habeas claim under § 2241. See

Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (claims for speedier release must

be brought through habeas); United States v. Scott, 803 F.2d 1095, 1096 (10th

Cir. 1986) (claim that federal sentence ran concurrently with state sentence

should be brought under § 2241). And insofar as he seeks damages, he has no

cause of action until he obtains relief from the sentence. See Heck v. Humphrey,

512 U.S. 477 (1994); Clemente v. Allen, 120 F.3d 703, 705 (7th Cir. 1997)

(challenge to consecutive sentences barred by Heck as challenge to sentence’s

duration).

As for his claim that he should be serving his state sentence in a federal

institution, he points to evidence that the state judge ordered such service, but he

has not explained how disregard of that order violated any federal right. A

§ 1983 claim must be based on such a violation. See Summum v. City of Ogden,

297 F.3d 995, 1000 (10th Cir. 2002) (under § 1983, a plaintiff “must establish . . .

a violation of rights protected by the federal Constitution or created by federal

statute or regulation.” (internal quotation marks omitted)). He therefore fails to

state a claim.
-5-

We AFFIRM the judgment below. Mr. Frey’s motion to proceed in forma

pauperis is GRANTED.

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge