Barela v. Wyoming Department of Corrections Honor Conservation Camp Warden et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
STEVEN R. BARELA,
Petitioner,
vs. 	Case No. 19-CV-0011-NDF
WYOMING DEPARTMENT OF
CORRECTIONS HONOR
CONSERVATION CAMP WARDEN
TODD MARTIN, in his official capacity,
Respondent,
MEMORANDUM OPINION AND ORDER GRANTING IN PART
RESPONDENT’S SECOND MOTION FOR SUMMARY JUDGMENT AND
DISMISSING PETITION WITHOUT PREJUDICE
This matter is before the Court on Respondent Warden Todd Martin’s second
motion (doc. 25) for summary judgment on Petitioner Steven R. Barela’s petition for
habeas corpus under 28 U.S.C. § 2241. In the Court’s order on the parties’ first motions
for summary judgment, the Court found material fact disputes precluded summary
judgment for either party on Petitioner’s equal protection claims. Doc. 16 (Order of August
12, 2019, referred to hereafter as the First Summary Judgment Order). 	The Court set a
schedule for discovery, the parties’ expansion of the record, and second motions for
summary judgment. Doc. 17 (Order of August 16, 2019). Both parties filed materials to
expand the record. 	Docs. 23, 24. 	With the Court’s leave, Respondent submitted certain
unredacted, confidential materials expanding the record on CD under seal. Petitioner has
8:48 am, 1/31/20
FILED
Margaret Botkins
Clerk of Court
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filed his opposition (doc. 34) to Respondent’s second motion for summary judgment, and
Respondent’s time in which to reply has passed. The motion is therefore ripe. 	For the
reasons that follow, the Court concludes it lacks jurisdiction to hear Petitioner’s claims on
a habeas petition, and construing the petition as a 42 U.S.C. § 1983 complaint would be
futile because based on the expanded record, Petitioner’s remaining claims would not
survive summary judgment. The Court therefore dismisses the petition without prejudice.
B ACKGROUND
Petitioner seeks relief under 28 U.S.C. § 2241, which provides habeas corpus relief
as to the execution of a sentence in certain circumstances. Specifically, Petitioner asserts
he is “in custody in violation of the Constitution or laws … of the United States ....” 28
U.S.C. § 2241(c)(3). 	In the claims that survived the First Summary Judgment Order,
Petitioner asserts equal protection violations in disciplinary proceedings held in the
Wyoming Department of Corrections’ (“DOC”) Honor Conservation Camp (“WCC”).
Doc. 1. The First Summary Judgment Order recites the undisputed facts at length, and the
Court assumes familiarity with that order here.
To summarize Petitioner’s contentions, he asserts he was discriminated against on
the basis of his Hispanic race and nature of his conviction (non-sex offender) in two
disciplinary proceedings at WCC. The first proceeding arose from conduct in Petitioner’s
participation in the Camp’s dog program known as “L.O.V.E.D.,” the Lost Orphaned
Valued Exceptional Dogs Program. Specifically, Petitioner was disciplined for feeding his
dog human food, when he allowed an inmate in the chow hall to give the dog human food.
In the disciplinary proceeding following this incident, Petitioner asserts he was treated
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more harshly than a white sex-offender participant in the program who had admitted to
assaulting Petitioner in a September 2018 incident. 	The second disciplinary proceeding
arose from a confidential allegation that Petitioner had made threats against other inmates;
Petitioner asserts the second proceeding was an outgrowth of the racial animus that
motivated the first proceeding. As a result of the second disciplinary proceeding, Petitioner
was transferred for several months to other facilities. 	Apparently in the process, DOC
confiscated or lost some of Petitioner’s personal property, and Petitioner seeks its return or
restitution, among other forms of relief.
D ISCUSSION
I. 	Jurisdictional Issue
As a preliminary matter, Respondent raises a jurisdictional issue. Petitioner brought
his claims using the Court’s form for a § 2241 habeas petition and paid the $5 filing fee.
He seeks several forms of relief – expungement of disciplinary convictions; restitution of
personal property lost or impounded; reinstatement to his former positions in the
L.O.V.E.D. dog program, housing and job; damages and punitive damages. 	Petitioner
further requested to be transferred back to the Conservation Camp. This request is moot
because he has in fact already been retransferred there.
Section 2241 provides habeas corpus relief as to the execution of a sentence in
certain circumstances. 	Montez v. McKenna, 	208 F.3d 862, 865 (10th Cir. 2000)
Specifically, § 2241 provides habeas relief to prisoners who are “in custody in violation of
the Constitution or laws … of the United States ....” 	28 U.S.C. § 2241(c)(3). 	“[T]he
essence of habeas corpus is an attack by a person in custody upon the legality of that
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custody, and … the traditional function of the writ is to secure release from illegal
custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (emphasis added).
The habeas writ also encompasses requests to “attack future confinement and obtain
future releases.” Id. “[T]he federal habeas corpus statute does not deny the federal courts
power to fashion appropriate relief other than immediate release. Since 1874, the habeas
corpus statute has directed the courts to determine the facts and dispose of the case
summarily, as law and justice require.” 	Id. (internal quotation marks omitted). 	Thus,
habeas proceedings are the correct vehicle for “a prisoner who challenges the fact or
duration of his confinement and seeks immediate release or a shortened period of
confinement.” Palma-Salazar v. Davis, 677 F.3d 1031, 1035 (10th Cir. 2012).
Restitution, damages and punitive damages are not available in habeas proceedings.
Preiser, 411 U.S. at 494 (damages are available only in civil rights actions); Davis v. Fox,
701 F. App’x 715, 716 (10th Cir. 2017) (claim for retaliatory impoundment of personal
property cannot be brought in habeas petition). The Court clearly cannot hear Petitioner’s
requests for those types of relief on a habeas petition.
As for Petitioner’s request to be reinstated to his former positions within the
Conservation Camp, “[t]hough the Supreme Court has not set the precise boundaries of
habeas actions, it has distinguished between habeas actions and those challenging
conditions of confinement.” 	Palma-Salazar, 677 F.3d at 1035 (internal quotation marks
omitted). 	In the Tenth Circuit, claims regarding conditions of confinement cannot be
brought by habeas petition even if the only relief sought is injunctive (transfers,
reinstatements); this type of claim must instead be brought in a civil action. 	See, e.g.,
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Stouffer v. Carpenter, 782 F. App’x 706, 708 (10th Cir. 2019) (“It is well-settled law that
prisoners who wish to challenge only the conditions of their confinement ... must do so
through civil rights lawsuits ... not through federal habeas proceedings,” citing Standifer v.
Ledezma, 653 F. 3d 1276, 1280 (10th Cir. 2011)). In Palma-Salazar, the habeas petitioner
sought only a transfer to a lower-security facility; the Tenth Circuit held his claims
regarded conditions of confinement and affirmed dismissal without prejudice. 677 F.3d at
1033. 	See also Buhl v. Berkebile, 597 F. App’x 958, 959 (10th Cir. 2014) (affirming
dismissal without prejudice of habeas petition seeking transfer from special housing unit
to general prison population). Accordingly, the Court cannot hear Petitioner’s requests for
reinstatement to his former positions on a habeas petition.
This leaves Petitioner’s request for expungement of the two disciplinary convictions
at issue. Respondent recognizes this part of the petition is arguably appropriate for a habeas
petition but argues Petitioner’s indeterminate sentence (28 years to life, doc. 24-1) means
that his petition cannot result in an earlier release.1 Under Wyoming law, persons with an
indeterminate life sentence (and were over 18 years of age at the time of the offense, as
Petitioner was) are ineligible for parole. Wyo. Stat. § 7-13-402(a) (“The board may grant
a 	parole 	to 	any 	person 	imprisoned 	… 	under 	sentence, 	except 	a 	sentence 	of 	life
imprisonment without parole or a life sentence”); Doc. 24-12 (Wyoming Parole Board
Policy and Procedure Manual), p. 3 ¶ II.B. 	Petitioner can obtain release only by
1 Based on accrued good time credits that are apparently not at issue, Petitioner has served his
minimum twenty-eight years. Doc. 24-13. In his response, Petitioner contends he is not on a “life”
sentence, based on drawing a distinction between life and “during life.” Petitioner’s contention is
insufficient to raise a material fact dispute; the state court judgment is conclusive on this issue.
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commutation or pardon. 	See, e.g., Wyo. Stat. § 6-10-301(c); Bird v. Wyoming Bd. of
Parole, 2016 WY 100, ¶ 14, 382 P.3d 56, 64 (Wyo. 2016).
Requests for pardon are discretionary to the Governor. 	Wyo. Const. Art. 3 § 53.
Requests for commutation are likewise discretionary, first with the Parole Board and then
with the Governor. 	Wyo. Stat. § 7-13-401(f); Wyo. Const. Art. 4, § 5. 	An inmate’s
disciplinary record is one of many factors considered on a commutation request. 	If
Petitioner’s two disciplinary convictions at issue were expunged, this would result in a
more favorable position for requesting commutation, but it would not entitle him to
commutation.2 Therefore, Respondent argues, the Court does not have jurisdiction to hear
his habeas petition because success would not “necessarily spell speedier release,” citing
Wilkinson v. Dotson, 544 U.S. 74, 82 (2005).
Petitioner opposes this argument, arguing that if Respondent were correct, DOC
could violate the constitutional rights of inmates with life sentences with impunity.
However, Petitioner does not address why a civil action under 42 U.S.C. § 1983 would not
provide an avenue for at least some of the relief he requests.
To date, the Supreme Court has been more concerned to limit the scope of § 1983
and Bivens civil actions vis-a-vis habeas relief, not the scope of habeas petitions. 	Both
Preiser and Wilkinson address whether § 1983 was an appropriate vehicle for the prisoners’
claims in question. Preiser left open whether habeas and § 1983 could overlap:
2 Petitioner also asserts the alleged equal protection violations caused him (among other things) to
be in restricted housing at the time of his commutation hearing, causing him to have to appear for
the hearing in full restraints. 	Petitioner claims that appearing in full restraints significantly
contributed to the panel’s denial of his request to recommend commutation.
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[A] § 1983 action is a proper remedy for a state prisoner who is making a
constitutional challenge to the conditions of his prison life, but not to the fact
or length of his custody. * * * This is not to say that habeas corpus may not
also be available to challenge such prison conditions. … When a prisoner is
put 	under 	additional 	and 	unconstitutional 	restraints 	during 	his 	lawful
custody, it is arguable that habeas corpus will lie to remove the restraints
making the custody illegal.
Preiser, 411 U.S. at 499 (emphasis added). 	In that case, the Supreme Court declined to
“explore the appropriate limits of habeas corpus as an alternative remedy to a proper action
under § 1983.” Id. at 500. More recently, at least for claims that assert “large-scale policy
decisions concerning the conditions of confinement imposed on hundreds of prisoners,”
the Supreme Court has “left open the question whether they might be able to challenge
their confinement conditions via a petition for a writ of habeas corpus.” Ziglar v. Abbasi,
–U.S.–,137 S. Ct. 1843, 1862–63 (2017) (citing Preiser and Bell v. Wolfish, 441 U.S. 520,
526 n. 6 (1979)). In Ziglar, illegal aliens alleged the Department of Justice adopted a policy
shortly after the September 11 terrorist attacks to detain aliens based on their race, religion
or national origin and to subject them to harsh conditions and physical abuse for a punitive
purpose. In writing for a four-justice majority,3 Justice Kennedy assumed without deciding
that the habeas remedy would have been available for these prisoners to seek transfers to
“less-restrictive conditions.” Ziglar, 137 S. Ct. at 1863.
Here, Petitioner’s allegations are nothing like the large-scale policy decisions
alleged in Ziglar, and it appears the Tenth Circuit has not taken Ziglar as an invitation to
revisit the scope of habeas jurisdiction. The Court therefore decides the jurisdictional issue
3 Two justices dissented in Ziglar and three took no part in the case.
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regarding Petitioner’s request for expungement under the current state of the law in the
Tenth Circuit. In Griffin v. Samu, 65 F. App’x 659 (10th Cir. 2003), a state prisoner sought
expungement 	of 	a 	disciplinary 	conviction, 	where 	expungement 	would 	result 	in
reinstatement of good time credits, but those credits would only affect parole eligibility,
not his eventual date of discharge. 	The Tenth Circuit declined to reach whether such a
claim should be brought pursuant to § 1983 or instead by habeas. Id. at 660 n.1, 661. In
Buhl v. Hood, 81 F. App’x 273 (10th Cir. 2003), the Tenth Circuit
recognize[d] that the line demarking actions appropriately brought under
Bivens [civil rights actions] and those falling under § 2241 is not always
crystal clear. … we have held that a § 2241 attack on the execution of a
sentence may challenge the loss of good time credits and other prison
disciplinary matters.
Id. at 274 (internal quotation marks and citations omitted, emphasis added).
However, more recently the Tenth Circuit held a “petition address[ing a prisoner’s]
placement in the SMU and loss of phone and email privileges,” which did “not allege he
should be immediately released or that any prison official has impermissibly increased the
duration of his sentence,” and sought “only the expungement of the incident from his record
and a return to general population,” could not be brought by a § 2241 petition. Lawrence
v. Oliver, 602 F. App’x 684, 687–88 (10th Cir. 2015).
Here, much like in Lawrence, Petitioner does not allege expungement of the
disciplinary convictions would entitle him to immediate or earlier release. 	Although if
Petitioner were successful on his claims he would be in a more favorable position for his
next commutation request, by Wilkinson’s reasoning, this is not enough to recognize his
claim for expungement on a habeas petition.
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Success for Dotson [one of the plaintiffs who brought a civil action] …
means at most new eligibility review, which at most will speed consideration
of a new parole application. Success for Johnson [the other plaintiff] means
at most a new parole hearing at which [the] … authorities may, in their
discretion, decline to shorten his prison term. … Because neither prisoner's
claim would necessarily spell speedier release, neither lies at “the core of
habeas corpus.”
Wilkinson, 544 U.S. at 82. 	Given the traditional purpose of habeas petitions, the Tenth
Circuit’s most recent holding on this issue in Lawrence, and the reasoning in Wilkinson,
the Court finds it lacks jurisdiction to hear Petitioner’s request for expungement of the
disciplinary convictions on his habeas petition.
The next question is whether the Court should liberally construe the petition as
having instead been brought as a 42 U.S.C. § 1983 action. 	Petitioner did not expressly
request such treatment, but he did oppose Respondent’s jurisdictional argument as
permitting Respondent to violate constitutional rights with impunity.
Because Petitioner is pro se, the Court construes his filings liberally. 	Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (per curiam); Garza v. Davis, 596 F.3d 1198, 1201 n.2
(10th Cir. 2010). 	Liberal construction means that if the Court “can reasonably read the
pleadings to state a valid claim on which the plaintiff could prevail, [the court] should do
so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal
theories, … or his unfamiliarity with pleading requirements.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). But the Court cannot act as an advocate for the pro se litigant.
Id. 	“[T]he court cannot take on the responsibility of serving as the litigant's attorney in
constructing arguments and searching the record.” 	Garrett v. Selby Connor Maddux &
Janer, 425 F.3d 836, 840 (10th Cir. 2005).
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Since the question is whether to construe Petitioner’s habeas petition as a § 1983
complaint, not vice versa, there is no concern of prejudicing Petitioner’s ability to bring a
second habeas petition without the circuit court’s leave. It is not clear whether the Tenth
Circuit has yet addressed a case in which a district court recharacterized a habeas petition
as a § 1983 complaint.4 When faced with this situation, the Northern District of Oklahoma
concluded it should not do so, in part because
Petitioner would be required to pay the difference between the $350.00 filing
fee for civil rights cases and the $5.00 filing fee for habeas cases—a
difference of $345.00. See Jones v. Wilner, 2008 WL 4758549, at *1 (D.
Colo. Oct. 24, 2008) (construing habeas petition as civil rights action and
requiring inmate to immediately pay the balance of the filing fee, or to file a
motion and affidavit for leave to proceed in forma pauperis pursuant to 28
U.S.C. § 1915 and make monthly payments in accordance with § 1915(b)(2)
until the filing fee was paid in full). Construing this habeas Petition as a
complaint seeking relief under 42 U.S.C. § 1983 could be a significant
burden on Petitioner.
Lamar v. Whitten, No. CIV-19-358-PRW, 2019 WL 5406568, at *2 (W.D. Okla. July 12,
2019), report and rec. adopted, 2019 WL 5399542 (W.D. Okla. Oct. 22, 2019). The filing
fee for complaints has increased to $400, so Petitioner would be required to either pay $395
immediately or a motion and affidavit to proceed in forma pauperis, and then make monthly
4 The Tenth Circuit has at times condoned recharacterizing a § 1983 complaint as a habeas petition,
but in each case the claims failed under either theory. See, e.g., MacNeil v. Woodford, 132 F.3d
43 (10th Cir. 1997) (construing pleading as both a § 1983 action and habeas petition); Kailey v.
Ritter, 500 F. App’x 766, 769–70 (10th Cir. 2012) (“[t]he district court could liberally construe [a
pro se] complaint as a section 2254 petition,” citing Smith v. Maschner, 899 F.2d 940, 951 (10th
Cir. 1990)). 	On the other hand, where a prisoner’s § 1983 pleading did not request an earlier
release, the Tenth Circuit deemed construing the complaint as arising under both § 1983 and
§ 2254 would “border[] on advocacy.” Richards v. Bellmon, 941 F.2d 1015, 1019 n.3 (10th Cir.
1991).
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payments until the fee is paid in full. 	As in Lamar, the Court finds this could be a
significant burden to impose on Petitioner.
The Lamar court also concluded it should not recharacterize the habeas petition as
a § 1983 complaint due to futility because the court concluded petitioner’s allegations
would not state a claim. 	Id., 2019 WL 5406568, at *2. 	Here too, the Court finds
recharacterizing Petitioner’s habeas petition as a § 1983 complaint would be futile, and on
this basis as well, the Court will not construe the petition as a § 1983 action.
II. 	Even if Construed as Brought Under 42 U.S.C. § 1983, Petitioner’s Remaining
Claims Would Not Survive Summary Judgment
Construing the petition’s equal protection claims as though brought in a § 1983
complaint would be futile because these claims would not survive Respondent’s summary
judgment motion. 	Although futility of a potential claim is more frequently addressed
before discovery, Petitioner has had the opportunity to conduct discovery. As noted above,
both parties filed their materials to expand the record. 	Consistent with the Court’s
scheduling order, Respondent has also filed his second motion for summary judgment. It
is therefore appropriate to consider futility in this instance by examining whether
Petitioner’s claims would survive summary judgment. Cf., Coleman v. Utah State Charter
Sch. Bd., 673 F. App’x 822, 826–27 (10th Cir. 2016) (“An amendment is futile if the
amended complaint would be subject to dismissal for any reason, including summary
judgment.”).5
5 The First Summary Judgment Order set forth the standards for summary judgment. It should be
granted “if the movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material fact is one that “might
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“The Equal Protection Clause of the Fourteenth Amendment commands that no
State shall ‘deny to any person within its jurisdiction the equal protection of the laws,’
which is essentially a direction that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). “In order to assert a
viable equal protection claim, plaintiffs must first make a threshold showing that they were
treated differently from others who were similarly situated to them.” Requena v. Roberts,
893 F.3d 1195, 1210 (10th Cir. 2018), cert. denied, 139 S. Ct. 800 (2019). 	“Individuals
are ‘similarly situated’ only if they are alike ‘in all relevant respects.’” Id. (quoting Coal.
for Equal Rights, Inc. v. Ritter, 517 F.3d 1195, 1199 (10th Cir. 2008)).
The second element Petitioner must show for his claim of discrimination based on
his Hispanic race is that Respondent acted with “racially discriminatory intent or purpose.”
Villanueva v. Carere, 85 F.3d 481, 485 (10th Cir. 1996). 	“The discriminatory purpose
need not be the only purpose, but it must be a ‘motivating factor in the decision.’” 	Id.
(quoting Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265–266
(1977)). Discriminatory purpose “implies that the decisionmaker ... selected or reaffirmed
a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “[T]he nonmoving party must support its contention that a genuine dispute of
material fact exists either by (1) citing to particular materials in the record, or (2) showing that the
materials cited by the moving party do not establish the absence of a genuine dispute.” Tolman v.
Stryker Corp., 108 F. Supp. 3d 1160, 1162–63 (D. Wyo. 2015), aff’d, 640 F. App’x 818 (10th Cir.
2016) (citing Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). See also
Fed. R. Civ. P. 56(c)(1)(A)–(B). 	“[W]e examine the record and all reasonable inferences that
might be drawn from it in the light most favorable to the non-moving party, without making
credibility determinations or weighing the evidence.” Roberts v. Jackson Hole Mountain Resort
Corp., 884 F.3d 967, 971 n.3 (10th Cir. 2018) (quotation marks omitted).
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effects upon an identifiable group.” United States v. Jackson, No. 16-CR-2362-WJ, 2018
WL 6602226, at *5 (D.N.M. Dec. 17, 2018) (quoting Wayte v. United States, 470 U.S. 598,
610 (1985)). Petitioner’s claims based on his non-sex offense status are instead subject to
a rational basis test, under which Petitioner must “allege facts sufficient to establish ‘the
distinction between himself and other inmates was not reasonably related to some
legitimate penological purpose.’” Harrison v. Morton, 490 F. App’x 988, 994 (10th Cir.
2012) (citing Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996); Templeman v.
Gunter, 16 F.3d 367, 371 (10th Cir. 1994)).
A. 	Petitioner’s Equal Protection Claim Regarding the Disciplinary Proceeding
for Feeding his Dog Human Food
Regarding Petitioner’s first disciplinary charge and conviction for an infraction of
the dog program rules (by feeding his dog human food), Petitioner claims this was harsher
treatment than similarly-situated white sex-offenders received, who had fed their dogs
human food and were not charged with disciplinary violations. Respondent has expanded
the record on this issue with affidavits of Audra Dudzinski (doc. 24-4) and Karen Powers
(doc. 24-5), who are both officers in the L.O.V.E.D. dog program, and the affidavit of
Warden Todd Martin (doc. 24-2). These affidavits state that with respect to Petitioner, he
had a history of rule infractions in the L.O.V.E.D. dog program prior to the events he
alleges, and that history necessitated escalating his discipline when it was reported that
Petitioner obtained human food for his dog in early October 2018.
In his response, Petitioner disagrees with the affidavits’ descriptions of his history
in the program, which he summarizes as claiming he was “detrimental to the Project
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L.O.V.E.D program,” and believes his Parole Board hearings of July 2016, July 2017, July
2018, and October 2018 will show differently. Doc. 34, pp. 2-3, 7.6 However, Petitioner’s
disagreement with the movant’s affidavits, without pointing to specific facts in the record
in support, does not suffice to show a material fact dispute for surviving summary
judgment. The only documentation from the parole board in the record is the panel’s denial
of 	his 	request 	to 	recommend 	commutation, 	dated 	October 	17, 	2018. 	Doc. 	14-3
(Respondent’s Ex. Q). The document does not discuss anything presented in the hearing
or the panel’s rationale.
Petitioner also submitted a CD of materials reflecting his contributions to the
L.O.V.E.D. 	program. 	The 	materials 	reflect 	Petitioner 	has 	a 	genuine 	passion 	and
commitment to the dogs, their training, and making a positive contribution through the
dogs to the people who ultimately receive them. The officers’ affidavits assert Petitioner
had violated program rules, but they do not seem to question Petitioner’s passion for
training the dogs in the L.O.V.E.D. program.
However, the material issue for purposes of Petitioner’s equal protection claim is
whether he was similarly situated with the white sex-offenders who he asserts received
more favorable treatment. 	Petitioner does not dispute the officers’ assertions that at the
time of the events in September and October 2018, he already had a history of program
6 Elsewhere, Petitioner asserts he can only request a commutation recommendation every five
years. Doc. 34, p. 12. It is unclear to the Court whether Petitioner’s annual Parole Board hearings
regard some other form of request, but this question does not appear material to Petitioner’s claims.
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rule infractions.7 The rule infractions had led to his being removed from the program for
a time. After he was reinstated, he violated another program rule and was suspended for 3
months. 	Petitioner does not point to any facts in the record establishing that the more
favorably treated white, sex-offender participants in the L.O.V.E.D. program had a similar
history in the program when they fed their dogs human food. Petitioner argues his prior
discipline history was also discriminatory, in that two or perhaps three other dog handlers
(M. Adkins, Nelson, Ken Eely) broke the dog program rules or DOC policies outside of
the program and were not disciplined. 	Doc. 34, pp. 8, 13-14. 	These assertions are
conclusory. Petitioner does not identify dates, the inmates’ offender status (sex offender
or not), or their disciplinary histories at the time of the rule violations for which they were
not removed from the dog program or the honor dorm.
Petitioner also does not point to facts rebutting the affidavits’ assertions that when
the officers learned of other participants feeding their dogs human food, they gave informal
warnings to not do so. 	Nor does Petitioner address Dudzinski’s assertion that they
investigated Petitioner’s allegation that Mr. Gifford’s dog, Gator, had his own bag in the
chow hall for human food and found no evidence of it. These facts undercut Petitioner’s
7 Petitioner asserts that as to one of the two early 2018 incidents in the officers’ affidavits, when
he put his hands on a growling dog and pushed it down, he “was found to have done nothing
wrong.” Doc. 34, p. 11. However, (a) Petitioner did not cite any documentation on that point, and
(b) Officers Dudzinski and Powers do not actually assert he was disciplined for this incident.
Rather, they assert the conduct was “contrary to the discipline taught in the program,” doc. 24-4,
and “could have injured the … dog.” 	Doc. 24-5. 	The apparent dispute of whether Petitioner
violated program rules or not in that instance is not material. The Court assumes Petitioner was
not disciplined for that incident, either because he was shown leniency or because there was no
violation. The Court also notes that in the early 2018 incident for which he was disciplined (for
allowing rough-housing with his dog), after filing a grievance, Petitioner received the same
discipline that he asserted white dog handlers had received. Doc. 24-6.
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assertion that he was singled out as the only dog handler whose conduct led to investigation.
In short, because on the expanded record Petitioner does not show the white and/or non-
sex offender dog handlers who were not disciplined for essentially the same conduct were
similarly situated to him, the claim would fail on Respondent’s summary judgment motion.
Construing Petitioner’s equal protection claim regarding the first disciplinary conviction
as though it were brought under § 1983 would be futile.
B. 	Petitioner’s Equal Protection Claim Regarding the Disciplinary Proceeding
for MJ-24 Threats
Regarding Petitioner’s second disciplinary charge and conviction for making
threats, Petitioner claims he received harsher treatment based on his Hispanic race and non-
sex offender status compared to Frank Gifford, a white sex-offender in the L.O.V.E.D.
program. Petitioner asserts Gifford admitted to punching Petitioner when the two sought
to separate fighting dogs in September 2018. Petitioner also asserts Gifford threatened him
during the incident, yet he did not receive a disciplinary conviction for either punching or
threatening him. Petitioner in contrast received a transfer to a higher security facility for
several months and was removed from the dog program, etc.
In expanding the record, Respondent filed several documents relating to the
September 2018 incident between Petitioner and Gifford. 	These include investigation
reports on Petitioner’s complaint regarding that incident, the investigating officer’s
audiorecorded interviews of Petitioner, Gifford and a witness (Mr. Trujillo), an affidavit
from the investigating officer regarding his investigation of the incident, Petitioner’s letter
to the director of DOC, and the deputy administrator’s response thereto. Doc. 24-7, 24-8,
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24-9, and 24-10 (exhibits G, H, I, J); CD submitted with Doc. 24 containing Ex. T (Gifford
interview); CD submitted with Doc. 25 containing Ex. A (Petitioner interview of
September 3, 2018), and Ex. C (interview of D. Trujillo, September 3, 2018).8
These materials assert: Gifford did not admit to assaulting Petitioner; rather, he said
he put his hands up, palms out, to prevent Petitioner from running into him in the process
of trying to separate Gator from the other dog. Mr. Trujillo did not see Gifford swing at
Petitioner and characterized his contact with Petitioner as more of a push or a throat-chop,
not a punch; Petitioner said in his interview with the investigating officer (Lieutenant Scott)
on September 3, 2018 that he did not remember whether Gifford’s hand was open or closed,
just felt some grazing of his jaw, and rated the pain at 1 out of 10. 	When asked why he
called the contact a punch, Petitioner said that’s what Officer Powers told him after viewing
the security camera footage.9 	Officer Powers was not present during the incident;
Petitioner and Trujillo reported the incident to her, and she was the charging officer against
Gifford. 	The nurse found no bruising or other sign of injury. 	The investigating officer
later viewed apparently the same video as inconclusive on the nature of Gifford’s contact
with Petitioner. Doc. 24-7 (Ex. G), p. 6.
8 Respondent also submitted a video file of security camera footage of the incident with Mr.
Gifford (Ex. B on CD submitted with Doc. 25), but it is in a proprietary N3R file format. 	The
Court could not open the video file.
9 In her staff report and conduct violation report on this incident, Officer Powers stated Barela
reported to her that Gifford hit him “under his chin on the right side,” Gifford admitted he “struck”
Barela, and the video “verified the reports of” Petitioner and Trujillo. Doc. 24-9, pp. 6, 12. Officer
Powers later reported that on viewing the video, it “appeared Gifford had come into contact with
Barela.” Doc. 24-5 (affidavit of November 15, 2019).
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Regarding Gifford’s threats to Petitioner, in his interview with Lieutenant Scott,
Petitioner did not express a concern that Gifford would attempt to follow through.
Petitioner said there was no continuing issue with Gifford. Trujillo did not take Gifford’s
talk seriously, characterizing it to the effect of Gifford was just being a grumpy person
generally.10 In the end, based on all the reports from the investigation, the hearing officer
(Colt Peterson) dismissed the disciplinary charge against Gifford for lack of evidence.
In response, Petitioner does not point to any facts in the record that rebut these
assertions. 11 	Petitioner asserts the audiorecordings and staff reports support the assault
against him (doc. 34, p. 4), but those materials instead reflect that other than Officer
Powers’ initial reaction to the video, no one but Petitioner and Officer Powers asserted
Gifford did more than defensively push or shove Petitioner in the chest or neck during the
dog fight. Gifford said he pushed Petitioner to prevent him from running into him; Trujillo
said he did not see anything other than Gifford’s hand in contact with Petitioner’s neck; in
the investigating officer’s view, the video did not show the nature of the contact. 	More
importantly, the audiorecordings and staff reports uniformly reflect Petitioner had no
injury. Assault causing physical injury was a required element for the disciplinary charge
against Gifford. Doc. 24-7, p. 6.
10 Both parties also filed materials relating to Petitioner’s grievance(s) earlier in 2018, alleging
several inmates had made threats to him that staff did not investigate. Without deciding whether
these documents show exhaustion of administrative remedies, Petitioner does not point to any facts
that would support the inmates in question were white, non-sex offenders, or that they were all
similarly-situated to him.
11 Petitioner asks (doc. 34, p. 3) for an opportunity to refute the allegations in Respondent’s second
summary judgment motion, but his response to that motion was his opportunity to do so.
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Respondent also filed several documents relating to the October 2018 investigation
of Petitioner’s alleged threats and the disciplinary conviction on the MJ-24 charge,
including an unredacted12 copy of Lieutenant Scott’s investigation report summarizing the
confidential informants’ statements, audiorecordings of the investigatory interviews with
Petitioner on October 11 and 12, 2018, and an audiorecording of the October 15, 2018
disciplinary hearing.
In the First Summary Judgment Order, the Court noted the record was unclear
whether Petitioner had pled guilty or not in this hearing. The October 15 audiorecording
reflects Petitioner was at first confused about the need to request a plea bargain if he wanted
to do so, before pleading guilty. 	However, once Petitioner asked for the charge to be
reduced or deferred, the hearing officer (Sergeant Peterson) understood Petitioner was
confused and cleared this up. The panel disregarded Petitioner’s guilty plea and allowed
him to request a plea bargain – down from the major infraction 24 (threat) to a general
infraction 19 (insulting behavior, etc.). 	The hearing panel considered this request and
denied it. Peterson then explained to Petitioner that they were returning to the same point
where he’d been confused earlier. Peterson asked Petitioner how he pled to the MJ-24, and
Petitioner said guilty. See Respondent’s Ex. D (CD filed with Doc. 25) at approximately
18:50 and again at 19:29. Petitioner pled guilty to the MJ-24 charge for making threats.
12 Petitioner notes he has not received the unredacted report. This is because the Court granted
Respondent’s motion to submit the unredacted report only under seal for the Court’s in camera
review, due to the security concern that inmates who gave confidential statements in the
investigation should not have their identities disclosed to the inmate who was the subject of the
investigation. 	Petitioner received the redacted report, and for purposes of his claims, the three
informants’ identities appear to be irrelevant.
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Petitioner does not point to any facts in the record to support he was similarly
situated with Gifford as to the second disciplinary conviction. Gifford did not plead guilty
to the disciplinary charge of minor assault; rather, the hearing officer dismissed it for lack
of evidence, as discussed above. 	Petitioner argues the investigating officer, Lieutenant
Scott, has been inconsistent in his affidavits regarding the number of confidential
informants that reported hearing Petitioner make threats. At this phase, the Court cannot
determine credibility of witnesses and is to construe the evidence in the light most
favorable to Petitioner. However, Petitioner does not show a genuine issue of material fact
on this issue. 	The investigation report reflects Lieutenant Scott heard from three
informants – the same number of inmates that he mentioned as reporting the threat in his
October 12, 2018 interview of Petitioner. The report reflects that one of the three did not
hear the threat directly, but only heard from another inmate that they had heard Petitioner
say it. 	Lieutenant Scott’s references at time to two informants is consistent with
discounting the hearsay informant for purposes of charging Petitioner.
Petitioner also argues that the caseworker (Ms. Townsend) on the hearing panel for
the MJ-24 charge should not have been on the panel according to DOC policies. However,
on the expanded record, Petitioner does not point to any facts supporting this procedural
irregularity was racially motivated. 	I.e., Petitioner does not point to facts suggesting
Respondent included Ms. Townsend on the hearing panel at least in part to treat Petitioner
more harshly because he is Hispanic.
Petitioner further argues Ms. Townsend’s affidavit has discrepancies in asserting
the first report of Petitioner’s threats occurred when an inmate told her on October 10,
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201813 that Barela was “becoming more erratic due to not getting parole” and that Petitioner
intended to do what it takes to be sent to the Wyoming State Penitentiary if his hearing did
not go well, including to take out the females in C-Dorm. 	Doc. 24-14. 	Ms. Townsend
further states she submitted a staff report on this assertion, and Lieutenant Scott followed
up on it with her. 	Petitioner points out this alleged conversation was a week before his
commutation hearing, so he could not have yet been erratic about not receiving parole, and
therefore Petitioner disbelieves that this conversation ever took place. 	Again, the Court
cannot resolve credibility issues on summary judgment, but even in the light most favorable
to Petitioner, the inmate’s alleged assertion to Ms. Townsend is consistent with Petitioner
having had unsuccessful parole board hearings in July 2016, July 2017, and July 2018, and
his next such hearing coming up soon on October 17, 2018.
In short, Petitioner does not point to facts suggesting white, non-sex offenders were
similarly situated and received more favorable treatment than he did, having pled guilty to
the MJ-24 charge. 	Accordingly, the equal protection claim as to this disciplinary
proceeding likewise would not survive summary judgment, and thus construing it as though
brought under § 1983 would be futile.
13 	In his response, Petitioner misreads Ms. Townsend’s affidavit as asserting this conversation
took place on October 8, 2018. Ms. Townsend asserts it occurred on October 10, the same day that
Petitioner was placed in restricted housing for the investigation. Lieutenant Scott’s investigation
report reflects he received Ms. Townsend’s staff report on the morning of October 11, 2018, in
which Ms. Townsend stated the conversation was on October 10. Doc. 24-18 (redacted copy).
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C. 	Petitioner’s Claim for Restitution or Restoration of Property
The petition seeks “[r]estitution for all of my Property taken or lost,” though it does
not allege any facts regarding the property that was allegedly taken or lost. 	Given how
little Petitioner alleged for this claim, it is unsurprising that Respondent’s briefs do not
appear to address it directly. However, in his expansion of the record, Petitioner provides
several documents relating to this claim. Doc. 23, pp. 43-57. Assuming without deciding
it was proper to provide the fact allegations in the expansion of the record, it would be
futile for the Court to construe the claim as though it had been brought under § 1983. First,
the only legal theories Petitioner has presented are for due process and equal protection
violations in the disciplinary proceedings, not in Respondent’s losing or confiscating his
personal and religious property. He has not pled any legal theory regarding his property.
In his response to the second summary judgment motion, Petitioner claims this was
“[r]etaliatory action for the Petitioner standing-up for his rights,” but he provides no factual
or legal argument or authorities in support. The Court cannot act as Petitioner’s advocate.
Second, even assuming Petitioner’s mere reference to retaliation is sufficient to state
a legal theory for how his constitutional rights were violated, the documents that Petitioner
submitted would support finding his claim was not administratively exhausted when he
brought it, as required for a prisoner’s § 1983 claims. 42 U.S.C. § 1997e(a); Jones v. Bock,
549 U.S. 199, 202 (2007) . Almost all of the documents that Petitioner submits post-date the
petition in this case. In addition, the letters from Warden Pacheco and the director of DOC
reference Petitioner failed to give a required written response regarding the property within
a 30-day time period. Petitioner did not include any documentation to show he complied
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with that requirement, or that he complied with the grievance procedures regarding his lost
or confiscated property more generally. 	If the Court were to construe the claim for
restitution as brought under § 1983, it would not survive summary judgment.
C ONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART
Respondent’s second motion for summary judgment, Doc. 25. The motion is GRANTED
to the extent it argues a lack of jurisdiction over Petitioner’s claims, and is DENIED to the
extent it seeks dismissal with prejudice. When the Court lacks jurisdiction, it must instead
dismiss without prejudice. Accordingly,
IT IS FURTHER ORDERED that Barela’s Petition (Doc. 1) is DISMISSED
WITHOUT PREJUDICE.
Dated this 31st day of January, 2020.
NANCY D. FREUDENTHAL
UNITED STATES DISTRICT JUDGE
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