This order and judgment is not binding precedent, except under the *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.

F I LED

United States Court of Appeals

Tenth Circuit

August 30, 2007

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL BACKUS,

Plaintiff-Appellant,

v. No. 07-1063

JOSEPH ORTIZ, Executive Director,

Colo. D.O.C.; DENNIS P. DIAZ,

Controller, Colo. D.O.C.; L. D. HAY,

Director Admin. & Finance, Colo.

D.O.C.,

Defendants-Appellees.

(D.C. No. 05-cv-0497-REB-BNB)

(D. Colorado)

ORDER AND JUDGMENT

*

Before BRISCOE, EBEL, and McCONNELL, Circuit Judges.

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

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument. 
 In pertinent part, Colo. Rev. Stat. § 16-18.5-106 provides: 1

(1) Whenever a person is sentenced to the department of corrections,

the department of corrections is authorized to conduct an

investigation into the financial circumstances of the defendant, as

described in section 16-18.5-104(3), for purposes of determining the

defendant’s ability to pay court ordered costs, surcharges, restitution,

time payment fees, late fees, and other fines, fees, or surcharges

pursuant to section 16-18.5-110.

2

Plaintiff Michael Backus (Backus), a Colorado state prisoner appearing pro

se, challenges the district court’s grant of summary judgment dismissing his 42

U.S.C. § 1983 action against employees of the Colorado Department of

Corrections (CDOC) for alleged violations of his constitutional rights. We

exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Backus was convicted of first degree murder and conspiracy in Colorado

state court, sentenced to life imprisonment, and was ordered to pay over one

million dollars in restitution, court costs, and fines (hereinafter, criminal

judgment). A state district court subsequently denied Backus’ request for the

return of funds ($2,652.26) that had been seized during his arrest. That court

determined Backus was not entitled to the return of these funds and directed they

be transferred to the CDOC for disposition pursuant to Colo. Rev. Stat. § 16-18.5-

106, a restitution statute. Accordingly, a Routt County Colorado Assistant 1

District Attorney notified the CDOC of the funds and asserted that the state

district court wanted the CDOC to collect 100% of the funds for payment towards
 Executive Directive 26-04 amended CDOC Administrative Regulation 2

200-15, stating that “[a]t least 20% of all deposits into an inmate’s bank account .

. . will be deducted and paid toward any outstanding balance . . . resulting from a

criminal case [and that] [t]he 20% withholding amount is the minimum

withholding required by state law.” 

3

Backus’ criminal judgment. 

Seeking to clarify the extent of its authority under § 16-18.5-106, the

CDOC then issued Executive Directive 26-04, stating that the CDOC “may order

amounts greater than the minimum twenty percent (up to one-hundred percent)

withholding from any inmate’s deposit to be applied toward any outstanding order

from a criminal case or for child support.” Following Executive Directive 26-04, 2

the CDOC applied 100% of the funds towards Backus’ criminal judgment. 

However, the CDOC then reevaluated its authority granted by § 16-18.5-106 and

concluded that it was only authorized to take up to 99.9% of incoming deposits. 

The CDOC thus applied 99.9% of the funds to Backus’ criminal judgment, and

refunded Backus 0.1% ($2.65).

Backus filed a civil rights action pursuant to 42 U.S.C. § 1983 against the

executive director of the CDOC, the CDOC controller, and the CDOC director of

administration and finance (Defendants). Backus alleged: (1) due process, equal

protection, and ex post facto violations; (2) the existence of a conspiracy among

Defendants to deprive Backus of his civil rights; and (3) specifically asserted that

the CDOC was only permitted to retain 20% of the funds in question. Backus
 Backus also seeks to challenge the district court’s determination that 3

Defendants were entitled to qualified immunity. Because we find that there was

no constitutional violation, we need not address the district court’s determination

regarding qualified immunity.

4

sought monetary damages, injunctive, and declaratory relief. 

Both Backus and Defendants moved for summary judgment. On the

recommendation of the magistrate judge, the district court granted Defendants

summary judgment, concluding that Defendants were entitled to Eleventh

Amendment immunity in their official capacities and qualified immunity in their

individual capacities, and concluding further that all of Backus’ claims lacked

merit. 

II

Backus raises the following issues on appeal: (1) whether the district court

erred in interpreting Colo. Rev. Stat. § 16-18.5-106, and (2) whether it erred in

dismissing his due process, equal protection, conspiracy, and ex post facto claims. 

For the following reasons, we conclude these arguments lack merit.3

First, as regards the CDOC’s interpretation of the statute, we note that

Colorado restitution statutes are to be construed liberally to ensure effective and

timely assessment, collection and distribution of restitution. Colo. Rev. Stat. §18-

1.3-601(2). Section 16-18.5-106(2) states that the CDOC “may fix the time and

manner of payment for court ordered costs, surcharges, restitution, time payment

fees, late fees, and any other fines . . . resulting from a criminal case ” and authorizes
5

the CDOC to “direct that a portion of the deposits into such inmate’s bank account

be applied to any outstanding balance” from a criminal case. Colo. Rev. Stat. § 16-

18.5-106(2) (emphasis added). The only limit on the CDOC’s discretion is that “[a] t

a minimum, the executive director shall order that twenty percent of all deposits into

an inmate’s bank account, including deposits for inmate pay shall be deducted and

paid toward any outstanding order from a criminal case or for child support.” Id.

(emphasis added). The CDOC interprets this statute as authorizing it to deduct

between 20% and 99.9% of incoming deposits into an inmate’s account for payment

toward court judgments from a criminal case or for child support. While we agree

with Backus that the statute is subject to varying interpretations, where statutory

language is ambiguous we defer to the interpretation of the agency charged with its

enforcement when that interpretation is reasonable. Chevron U.S.A., Inc. v. Nat.

Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Given that the statutory phrase

“at a minimum” indicates that the CDOC is authorized to deduct more than 20%, we

conclude that the CDOC’s interpretation of the statute is reasonable.

Second, we conclude that Backus’ equal protection claim lacks merit. To

prevail on an equal protection claim, Backus must prove that he was treated

differently than similarly situated individuals, and that such disparate treatment was

not rationally related to legitimate state interests. Christian Heritage Academy v.

Oklahoma Secondary School Activities Ass’n, 483 F.3d 1025, 1031-32 (10th Cir.

2007). Here, the district court dismissed Backus’ equal protection claim because he
6

did not provide any evidence to establish that any other inmates are similarly situated

to him. Backus failed to provide evidence that other inmates had funds confiscated

from them at the time of their arrest, that the trial court issued an order stating that

they were not entitled to the return of the funds and directing the CDOC to dispose

of the money pursuant to section § 16-18.5-106, and that the CDOC applied the

money to criminal judgments pursuant to that statute. Additionally, we see no merit

in Backus’ argument that there is a factual dispute over whether the district court

intended for the CDOC to deduct 20%, 99.9%, or 100% of the funds in question.

Third, we conclude that Backus’ due process claim fails because he has

received all the process he was due. The deprivation at issue here was occasioned

originally by a seizure during Backus’ arrest and then by a restitution order imposed

as a part of his criminal sentence imposed after his conviction. After Backus sought

return of the funds at issue, as well as other property that had been seized, the state

district court ordered briefing from the State, and Backus filed a reply. The court

then ordered the State to inform the CDOC of the funds held “so that disposition of

the same may be made pursuant to C.R.S. 16-18.5-106.” Appx. Vol. 1, Doc. 26, Ex.

A-2. The state district court entered this order after providing Backus an opportunity

to present his written arguments to the court. The process provided here was

sufficient. See Matthews v. Eldridge, 424 U.S. 319, 332-35 (1976). 
 In pertinent part, Colo. Rev. Stat. § 18-1.3-603(4)(b)(I) states that “[a]ny 4

order for restitution made pursuant to this section shall also be deemed to order

that . . . [t]he defendant owes interest from the date of the entry of the order at the

rate of twelve percent per annum.”

7

We also reject Backus’ claim that Colo. Rev. Stat. § 18-1.3-603 violates the 4

Ex Post Facto Clause. “The Ex Post Facto Clause prohibits states from passing laws

that retroactively alter the definition of crimes or increase the punishment for

criminal acts.” Boutwell v. Keating, 399 F.3d 1203, 1215 (10th Cir. 2005). A law

violates the Ex Post Facto Clause if the law (1) applies to events occurring before it

was enacted, and (2) disadvantages the petitioner by changing the definition of

criminal conduct or increasing the sentence for the criminal conduct. Smith v. Scott,

223 F.3d 1191, 1194 (10th Cir. 2000) (citations omitted). We have “rejected the

argument that the Ex Post Facto Clause applies to restitution, because the purpose

of restitution is not punishment.” United States v. Overholt, 307 F.3d 1231, 1254

(10th Cir. 2002), see also People v. Lowe, 60 P.3d 753, 757 (Colo. App. 2002)

(concluding that “because the [Restitution] Act simply facilitates collection from

defendant of the sums he was ordered to pay at the time of his sentencing, its

application to him does not constitute an ex post facto violation”). We agree with

the district court that Colo. Rev. Stat. § 18-1.3-603 does not affect the crime for

which Backus was indicted, the punishment prescribed therefor, or the quantity or

degree of proof necessary to establish guilt. Instead, § 18-1.3-603 merely establishes

procedures to facilitate the collection of restitution, costs, and other charges that
 To the extent Backus claims that Executive Directive 26-04, amending 5

Administrative Regulation 200-15, violates the Ex Post Facto Clause or evinces a

constitutional violation, this claim also fails. That the CDOC amended the

language of its regulation to clarify its discretion does not change the fact that it

already had discretion to withhold more than 20% of an inmate’s deposit under

the language of the statute and of its initial regulation.

 Backus also raises issues regarding the Colorado Contraband Forfeiture 6

Act. Some of these arguments were not meaningfully raised before the district

court, therefore, we decline to address them, and, in any event, we fail to see the

applicability of that Act to the facts or claims raised herein. See Hill v. Kan. Gas

Serv. Co., 323 F.3d 858, 865-66 (10th Cir. 2003) (declining to address arguments

for the first time on appeal).

8

were imposed as a part of Backus’ original sentence.

5

Finally, to succeed on a claim for conspiracy to deprive a plaintiff of his

constitutional rights, Backus must prove both the existence of the conspiracy and the

deprivation of constitutional rights. Thompson v. City of Lawrence, 58 F.3d 1511,

1517 (10th Cir. 1995). Again, we agree with the district court that this claim fails.

Here, the record is void of evidence that Defendants conspired to violate Backus’

constitutional rights. Instead, the record demonstrates only a concerted effort to

apply Backus’ funds to the payment of the criminal judgment entered against him.6

Accordingly, the judgment of the district court is AFFIRMED.

Entered for the Court

Mary Beck Briscoe

Circuit Judge