* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable John W. Lungstrum, District Judge, UnitedStates District Court for the District of Kansas, sitting by designation.

UNITED STATES COURT OF APPEALS Filed 1/14/97 FOR THE TENTH CIRCUIT

LUBERT G. RICHARDSON,

Plaintiff-Appellant,

v. TRACY STEFFA; GENE BRASSFIELD; TED SANZA; FIRST UNKNOWN RESPONDENT; SECOND UNKNOWN RESPONDENT; THIRD UNKNOWN RESPONDENT; FOURTH UNKNOWN RESPONDENT; AND UNKNOWN RESPONDENT; all defendants sued in their individual capacities and in their official capacities, Defendants-Appellees. No. 95-1447 (D.C. No. 95-S-896) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK and BRISCOE, Circuit Judges, and LUN GSTRUM, ** District Judge.1 It is unclear from the record whether plaintiff res ided in a program facility

or elsewhere. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff Lubert Richardson brought this action, wh ich he asserted raised only civil rights claims, alleging injury resulting from his removal from a community corrections program and imprisonment unde r the custody of the Colorado Department of Corrections (DOC). The district court construed plaintiff’s complaint as seeking both civil rights and habeas corpus relief. The court dismissed the civil rights claims as frivolou s under 28 U.S.C. § 1915(d) and dismissed the habeas corpus claim for failure to ex haust state remedies. Plaintiff appeals. We have jurisdiction under 28 U.S.C. § 12 91. In 1993, plaintiff pleaded guilty to unlawful posse ssion of a controlled substance and was sentenced to a term of eight year s in a community corrections program. In his complaint, plaintiff stated that u nder the community corrections program, he was able to work in the Denver community at good jobs, travel about the community unescorted, and maintain business andsocial contacts. After plaintiff had been in the program for some time, 1 a program administrator allegedly learned of a threatening telephone call m ade by plaintiff and had him-3-

transferred to the custody of the county sheriff an d jailed. The Denver Community Corrections Board then rejected plaintiff from community corrections, and plaintiff was resentenced by the s tate court to imprisonment under the custody of the DOC. Plaintiff’s first three claims are closely related and essentially challenge the constitutionality of the Colorado statutes allowing an offender to be rejected from community corrections after acceptance and confined in a county jail, and then allowing the court to resentence the offender to imprisonment without an additional hearing. Under Colorado’s community corrections program, Colo. Rev. Stat. §§ 17-27-101 to 108 (1996 Cum. Supp.), “[a] c ommunity corrections board has the authority to reject after acceptance the pl acement of any offender in a community corrections program” within the board’s j urisdiction. § 17-27-103(7). Program administrators have authority to reject and terminate the placement of any offender who violates conditions or guidelines of the program or of the offender’s placement. § 17-27-104(5). When a prog ram administrator has “cause to believe that an offender . . . has violated any rule or condition of such offender’s placement,” the administrator may order the offender transferred to the county sheriff, and the offender shall be held with out bond. § 17-27-104(6). Either the board or referring agency must provide a n administrative review process, § 17-27-104(5), including written notice t o the offender of the decision to reject and terminate placement and a method for informal review of the-4-

termination and rejection, § 17-27-102(1). If an o ffender is rejected after acceptance in a community corrections program, “the court may resentence the offender without any further hearing so long as the offender’s sentence does not exceed the sentence which was originally imposed up on the offender.” § 17-27- 105(e). “The sentencing court is not required to p rovide the offender with an evidentiary hearing pertaining to the rejection of placement in a community corrections program prior to resentencing.” § 17-2 7-105(g). The crux of plaintiff’s claims is that he has a con stitutionally protected liberty interest in not being regressed from commun ity corrections placement to DOC custody and that this liberty interest was deni ed without due process. In his complaint, he stated he was rejected from the progr am and resentenced without any hearing or other opportunity to be heard and wi thout assistance of counsel. He argues that the community corrections program is similar to parole and therefore subject to similar due process protection s. See Morissey v. Brewer , 408 U.S. 471, 481-84 (1972). The district court held that plaintiff’s regression from community corrections to the DOC was a classification matter entrusted to prison administrators and that the constitution does not p rovide a right to any particular classification. See, e.g. , Montayne v. Haymes , 427 U.S. 236, 242 (1976); Templeman v. Gunter , 16 F.3d 367, 369 (10th Cir. 1994). The court als o found that to the extent Colo. Rev. Stat. § 17-27-103(7) created a constitutionally2 We note that the Colorado Supreme Court has held th at the community

corrections statutes do not create a liberty intere st protected by due process rights. People v. Wilhite , 817 P.2d 1017, 1021-22 (Colo. 1991)(“[B]ecause th e statute very clearly gives the community corrections facili ty discretion to reject the defendant before or after acceptance for any or no reason[,] . . . there is no right or justifiable expectation [of remaining in the pro gram] created by state law. . . .”). The court also upheld, against an eq ual protection challenge, a court’s ability to resentence an offender after rejection w ithout an evidentiary hearing. Id. at 1022-23. The Colorado Court of Appeals has hel d that despite the lack of a right to an evidentiary hearing, an offender does h ave a due process right to counsel on resentencing. People v. Lippoldt , 902 P.2d 852, 853 (Colo. Ct. App. 1995), appeal dismissed as moot , 915 P.2d 1334 (1996). -5- protected liberty interest in remaining in community corrections, plaintiff “appears to have received a sufficient administrati ve review process.” District court’s September 21, 1995 order at 6. The court upheld the constitutionality of the Colorado statutes on the general basis that the y support the government’s strong interest in being able to classify offenders in “custodial confinement” quickly and efficiently. Id. at 9. 2
Plaintiff also raised two other claims. The distri ct court rejected plaintiff’s conspiracy claim under 42 U.S.C. § 1985(3) on the b asis that he had not alleged he was a member of a protected class. Plaintiff’s fifth claim is that the state breached his plea agreement, which allegedly prohib ited his being sentenced to imprisonment. The court concluded that this was es sentially a contract claim under state law and declined to exercise its supple mental jurisdiction over this claim. Finally, the court found that part of the n ature of the relief plaintiff sought--to be placed again in a community correctio ns program--may affect the-6-

length of his confinement and that his sole federal remedy was therefore habeas corpus. Because plaintiff failed to allege whetherhe had exhausted his state remedies, the court dismissed this portion of the complaint. In Harper v. Young , 64 F.3d 563 (10th Cir. 1995), cert. granted , 116 S. Ct. 1846 (1996), an opinion issued after the district c ourt’s ruling in this case, we examined an Oklahoma pre-parole program that bears some similarity to Colorado’s community corrections program. We descr ibed the Oklahoma program as follows: Although remaining in the “constructive custody” of the Department of Corrections, those in the Program work and resid e beyond the confines of a state penal institution and are thus free to enjoy most of the benefits of a normal existence. In return, a p rogram participant must agree to abide by restrictions similar to thos e placed upon a parolee. Violation of a condition may result in te rmination from the Program and a return to incarceration. Id. at 565 (footnote omitted). The petitioner in Harp erhad been removed from the program and reincarcerated without being grante d any type of hearing. Id. at 564. He petitioned for a writ of habeas corpus on the basis that he had been denied his liberty without due process. This court agreed that the petitioner had a liberty interest in remaining in the program, created not by any state statute, but rather one that was inherent in the constitution and thus protected by the due proc ess clause. Id. at 566. “A liberty interest inherent in the Constitution arise s when a prisoner has acquired a substantial, although conditional, freedom such that the loss of liberty entailed-7-

[by its revocation] is a serious deprivation requir ing that the [prisoner] be accorded due process.” Id. (alterations in original; quotations omitted). [T]he dispositive characteristic that marks the poi nt at which the Due Process Clause itself implies a liberty interest . . . is the fact of release from incarceration. The liberty associated with a life outside the walls of a penal facility dwarfs that available to an inmate. It is the freedom to be gainfully employed, to be with fa mily and friends, and to form the other enduring attachments of norma l life. It is the ability to reside in a home of one's own, without b ars or fences or bonds, beyond the immediate authority of guards or wardens. The passage outside the walls of a prison does not simp ly alter the degree of confinement; rather, it works a fundamental cha nge in the kindof confinement, a transformation that signals the exis tence of an inherent liberty interest and necessitates the full panoply of procedural protections outlined in Morrissey

. Id. ,(citation and quotations omitted). We need not address at this time whether the Colora do community corrections program is subject to the same due proc ess protections as the Oklahoma program in Harper . For present purposes, we conclude only that the two programs are similar enough that we cannot say plaintiff’s claims are based on “an indisputably meritless legal theory,” Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995)(quotation omitted), and subje ct to dismissal under § 1915(d). We therefore conclude that the districtcourt abused its discretion, see
Green , 59 F.3d at 1077, in dismissing plaintiff’s civil rights claims under § 1915(d). Plaintiff’s civil rights claims necessarily implicate the legality of his rejection from community corrections and subsequentincarceration. Thus, before3 Plaintiff has already tried to challenge his reject ion and incarceration

through a petition for writ of habeas corpus, but t he district court dismissed the petition because it concluded plaintiff should exha ust the state remedies available at least for his breach-of-plea-agreement claim. R ichardson v. Zavaras , No. 95-S-626, slip op. at 5-6 (D. Colo. Aug. 18, 1995). (This is similar to the approach the court took to the portion of plaintiff’s complaint in this case that it construed as seeking habeas relief.) The court imp lied that because of recent Colorado Supreme Court cases upholding the statutes governing rejection and resentencing, exhaustion of plaintiff’s challenges to these statutes and his due process claims would be futile under Goodwin v. Okl ahoma , 923 F.2d 156, 158 (10th Cir. 1991). Slip op. at 3-6. Plaintiff did not appeal this decision, and he admits that his state court action is proceeding, a lbeit slowly. Appellant’s Br. at 7-E. -8- plaintiff may pursue his civil rights claims, he mu st first obtain appropriate relief invalidating his rejection and incarceration in a s tate or federal habeas corpus proceeding. See Heck v. Humphrey , 114 S. Ct. 2364, 2372 (1994). Thus, plaintiff’s civil rights claims should be dismissedwithout prejudice to allow plaintiff to first obtain the relief required by He ck

. 3 We VACATE that portion of the district court’s orde r dismissing plaintiff’s claims under § 1915(d), and REMAND the case to the district court with instructions to dismiss the case without prejudice.

ENTERED FOR THE COURT PER CURIAM-9-

Baldock, Circuit Judge, concurring:

Because I believe much of the court’s analysis unne cessary to its resolution of this appeal, I concur in the result only. The c ourt first concludes after lengthy analysis that the district court should not have di smissed Plaintiff’s § 1983 claims as frivolous under § 1915(d). The court then concl udes in one final paragraph, however, that under Heck v. Humphrey , 114 S. Ct. 2364 (1994), Plaintiff may not pursue his § 1983 claims unless and until he obtain s “appropriate relief” in a habeas proceeding, because under Heck , a claim for damages based upon a conviction or sentence that has not been invalidate d “is not cognizable under § 1983.” Id. at 2372. I would simply say the district court sh ould not have reached the merits of Plaintiff’s § 1983 claims because und er Heck , they are not yet cognizable.