Opinion
NO 3-99-CV-2734-BD (D)
October 9, 2003
MEMORANDUM OPINION AND ORDER
Defendants S.O. Woods, Jr., Victor Rodriguez, and Bryan Collier have filed a second motion for summary judgment on the ground of qualified immunity in this civil rights action brought under 42 U.S.C. § 1983. For the reasons stated herein, the motion is granted.
I.
On September 10, 1986, Plaintiff Randolph Vinton Haas was paroled from the Texas Department of Criminal Justice — Institutional Division ("TDCJ-ID") after serving less than four years of a 20-year sentence for felony theft. (Def. MSJ App.-I at 001-004). Shortly after his release from prison, plaintiff moved to Albuquerque, New Mexico, where he was supervised by a local parole officer in accordance with an Interstate Compact Agreement between New Mexico and Texas. ( Id. at 005). While under supervision in New Mexico, plaintiff was arrested for embezzlement and fraudulent use of a credit card. ( Id. at 005-006). On January 5, 1988, the Texas Department of Criminal Justice-Parole Division ("TDC J-PD") issued a pre-revocation warrant based on this charge and asked New Mexico authorities to detain plaintiff pursuant to the warrant. ( Id. at 006-008). However, before the warrant was executed, plaintiff absconded from parole supervision. (Plf. MSJ App.-I at 195).
The record in this case consists of evidence submitted by the parties in connection with Defendants' First Motion for Summary Judgment, filed on June 11, 2001, ("MSJ App.-I"), and Defendants' Second Motion for Summary Judgment, filed on June 27, 2003 ("MSJ App.-II").
Plaintiff resurfaced in Boston, Massachusetts, where on May 18, 1988, he was arrested for forgery. Upon learning of this arrest, TDCJ-PD sent a teletype communication to the Boston Police Department advising:
SUBJ WANTED BY THIS AGENCY AS AN ADMINISTRATIVE RELEASE VIOLATOR ON THE AUTHORITY OF PRE-REV WRNT #01-05-88-358082 ISSUED 01-05-88. PLACE HOLD, WRNT AND PRE-SIGNED WAIVER OF EXTRADITION WILL FOLLOW, WRNT HAS NO BOND.
(Def. MSJ App.-II at 282). This request, which plaintiff characterizes as an "informal detainer," was repeated in two more teletypes sent to Boston police officials in late May and early June of 1988. ( Id. at 283-84). As a result of these communications, plaintiff was forced to remain in custody on the forgery charge pending trial. (Plf. MSJ App.-I at 204). Plaintiff subsequently pled guilty to this offense and was sentenced to 4-½ to 5 years in the Massachusetts Department of Corrections. ( Id.).
Plaintiff was paroled by Massachusetts authorities on November 16, 1989 after serving 548 days of his sentence. ( Id.). On January 18, 1991, TDCJ-PD withdrew its pre-revocation warrant pending action on a request to transfer parole supervision to the State of Massachusetts. (Def. MSJ App.-I at 015-018). However, Massachusetts denied this request for dual supervision because plaintiff was not a resident of the state, did not have family in the state, and was not employed within the state. ( Id. at 019). After receiving this information, TDCJ-PD issued a second pre-revocation warrant on April 25, 1991. ( Id. at 076).
Plaintiff moved to Norfolk, Virginia, after his release from prison with the approval of Massachusetts parole authorities. ( See Def. MSJ App.-I at 19).
In 1992, plaintiff was indicted by a federal grand jury in Massachusetts for forgery of private securities. He pled guilty and was sentenced to 34 months confinement, followed by supervised release for a period of three years. ( Id. at 096-097). Plaintiff remained in federal custody from June 29, 1992 until December 15, 1994. The day after his release from prison, TDCJ-PD withdrew the second pre-revocation warrant. ( Id. at 102).
Plaintiff returned to Texas on federal supervision. On October 25, 1995, plaintiff was arrested by federal marshals for a supervised release violation. (Plf. MSJ App. — I at 206). He remained in custody pending a revocation hearing on November 5, 1995. At that time, plaintiff's supervision was revoked and he was sentenced to an additional 18 months in prison. (Def. MSJ App.-I at 104-05). TDCJ-PD issued a third pre-revocation warrant and filed a detainer with federal authorities on March 4, 1996. ( Id. at 077, 080). When plaintiff was released from prison on June 5, 1998, he was immediately taken into state custody under the pre-revocation warrant. (Plf. MSJ App.-I at 206-07).
Upon his arrival at TDCJ-ID, plaintiff inquired about the calculation of his sentence credits for time spent in Massachusetts and federal custody. ( Id. at 067). Plaintiff was advised that only the time period from March 4, 1996 to June 5, 1998, or 824 days, had been applied toward his sentence. ( Id. at 067-068). Dissatisfied with this determination, plaintiff wrote to S.O. Woods, Jr., Chairman of the TDCJ-ID Classification Committee, seeking credit on his sentence for a total of 2,403 days spent in constructive custody due to warrants and detainers issued by TDCJ-PD. (Plf. MSJ App.-I at 935; see also Plf. First Am. Compl. at 5-6, P 18). After plaintiff received notice that these credits would not be allowed, he filed an application for writ of habeas corpus in state court. (Def. MSJ App.-I at 063-074).
Plaintiff calculated his sentence credits as follows:
(1) Physical custody in the Massachusetts Department of Corrections from May 18, 1988 until November 16, 1989 = 548 days;
(2) Physical custody in the U.S. Bureau of Prisons from June 29, 1992 until December 15, 1994 = 900 days; and
(3) Physical custody in the U.S. Bureau of Prisons from October 25, 1995 until June 5, 1998 = 955 days.
(Plf. MSJ App.-I at 935; see also Plf. First Am. Compl. at 5, ¶ 18). These calculations were ultimately accepted as correct by the state habeas court and the Texas Court of Criminal Appeals. (Def. MSJ App.-I at 257, 259-60).
Bryan Collier, Director of the TDCJ-PD Review and Release Processing Section, submitted an affidavit in the state habeas proceeding. ( Id. at 078-084). Instead of addressing plaintiff's entitlement to credit on his sentence for time spent in constructive custody, Collier pointed out why plaintiff was not entitled to the reinstatement of good time credits. ( Id. at 080-083). According to plaintiff, Collier perjured himself and attempted to "obfuscate the legal issues" by mischaracterizing the true nature of his sentence credit claim. Plaintiff maintains that this constitutes deliberate indifference and a wanton disregard for his constitutional entitlement to constructive custody credits. ( See Plf. First Am. Compl. at 6, ¶ 20).
Plaintiff also takes issue with Woods' failure to correctly compute his sentence. On January 8 and 14, 1999, plaintiff, through his attorney, furnished Woods with his calculations showing credit for time spent in constructive custody. (Def. MSJ App.-I at 131-33, 145-47). Although TDCJ-PD twice revised plaintiff's projected release date, the new computations were still inaccurate. ( Id. at 137, 152). Moreover, Woods sent a letter to the state habeas court mistakenly indicating that plaintiff had been penalized by the forfeiture of good time credits. ( Id. at 153-54). Plaintiff contends that the "negligent calculation of [his] credits in this letter jeopardized [his] timely release and is representative of the conscious indifference Defendant Woods showed toward [his] requests for the accurate computation of his time served." (Plf. First Am. Compl. at 10, ¶ 27).
On January 14, 1999, after Woods informed the lawyer representing plaintiff that TDCJ-PD was responsible for parole calculations related to detainers and administrative holds, counsel brought this matter to the attention of the Texas parole board. (Def. MSJ App.-I at 145-47). Two more letters were sent to Victor Rodriguez, Chairman of the TDCJ-PD, on January 23 and February 5, 1999. ( Id. at 155-62). Each time plaintiff sought sentence credit for time spent in constructive custody and provided detailed calculations to support his claim. ( Id.). Copies of these letters were also sent to Woods. On February 10, 1999, Woods wrote back:
Current review had not changed the information provided to you by my letter of 1-21-99. This case has been fully audited and there are no errors in the date calculations for the inmate. The inmate has received credits for all authorized times by this trial court and the TDCJ-Parole Division.
( Id. at 172).
On May 4, 1999, the state court held an evidentiary hearing on plaintiff's application for writ of habeas corpus. ( See id. at 214-39). At the conclusion of the hearing, the state conceded that "Mr. Haas deserves credit for the periods of time that he asked for." ( Id. at 237). The trial court made written findings and recommended that relief be granted. ( Id. at 255-58). The Texas Court of Criminal Appeals adopted this recommendation and awarded plaintiff an additional 995 days credit for time spent incarcerated out-of-state "While under detainers placed by the Texas authorities." Ex parte Haas, No. 73,475, op. at 1-2 (Tex.Crim.App. Aug. 18, 1999). Plaintiff was finally released from custody on September 10, 1999.
Plaintiff now sues Woods, Rodriguez, and Collier for civil rights violations under 42 U.S.C. § 1983. In his complaint, plaintiff alleges that the actions of defendants, which delayed his release by 163 days, constitutes cruel and unusual punishment under the Eighth Amendment and violated his right to substantive and procedural due process under the Fourteenth Amendment to the United States Constitution. The case is before the court on defendants' second motion for summary judgment on the ground of qualified immunity. The sole issue presented by this motion is whether the failure to award plaintiff constructive custody credits based on the "informal detainer" lodged against him, as evidenced by the teletypes sent by TDCJ-PD to the Boston Police Department, violates a clearly established right under federal law. This issue has been fully briefed by the parties and the motion is ripe for determination.
Plaintiff also sued Gary Johnson, Director of the TDCJ-ID, and two state agencies, the TDCJ-ID and the TDCJ-PD. By order dated September 21, 2000, the claims against those defendants were dismissed with prejudice.
As a sanction for failing to timely produce documents during discovery, including the teletype communications between TDCJ-PD and the Boston Police Department, the court struck defendants' first motion for summary judgment and ordered this case to trial. See ORDER, 9/7/01. The Fifth Circuit reversed, holding that this sanction was disproportionate to the discovery abuse and unfairly deprived defendants of the opportunity to litigate their qualified immunity defense. Haas v. Woods, No. 01-11401, op. at 3 (5th Cir. Nov. 7, 2001). On remand, the court allowed plaintiff to conduct additional discovery with respect to the teletype communications and gave defendants the option of either: (1) standing on their pending motion for summary judgment, or (2) withdrawing their summary judgment motion and filing a second motion upon the completion of additional discovery. Defendants elected to withdraw their pending motion so they could address any new evidence uncovered during discovery in a second motion for summary judgment. See ORDER, 12/16/02. When defendants failed to file a second motion by the March 29, 2003, deadline set by the court, they were limited to seeking summary judgment on the issue of whether plaintiff had alleged the violation of a clearly established constitutional right. See generally, Haas v. Woods, 2003 WL 21436094 at *3-4 (N.D. Tex. Jun. 13, 2003) (holding that defendants waived their right to file second motion for summary judgment, but allowing second motion on narrow legal issue of whether plaintiff has alleged the violation of a clearly established constitutional right).
II.
Government officials are immune from suit for discretionary acts performed in good faith while acting within the scope of their authority unless their conduct violates a "clearly established statutory or constitutional right of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). The Supreme Court has established a two-step process for analyzing a claim of qualified immunity. First, the court must determine "whether plaintiff's allegations, if true, establish a constitutional violation." Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 2513, 153 L.Ed.2d 666 (2002), citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct.2151, 2156, 150L.Ed.2d272(2001). If the plaintiff sufficiently alleges the violation of a constitutional right, the court must decide whether that right was clearly established at the time of the alleged violation and whether the conduct of the government official was objectively unreasonable under the circumstances. Id., 122 S.Ct. at 2515. A court is required to analyze these issues in sequential order to ensure that the doctrine of qualified immunity may continue to evolve. See, e.g. Saucier, 121 S.Ct. at 2155-56; County of Sacramento v. Lewis, 523 U.S. 833, 841 n. 5, 118 S.Ct. 1708, 1714 n. 5, 140 L.Ed.2d 1043 (1998); Seigert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 1793, 114L.Ed.2d277 (1991).
A constitutional right is clearly established if "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope, 122 S.Ct. at 2515, quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523(1987). This does not require proof that the specific conduct in question has been held unlawful in "fundamentally similar" or "materially similar" cases. Rather, the salient question is whether the state of the law at the time gives officials "fair warning" that their conduct is unconstitutional. Id. at 2515-16, citing United States v. Lanier, 520 U.S. 259, 269, 117 S.Ct. 1219, 1226-27, 137 L.Ed.2d 432 (1997). Stated differently, "the right is clearly established if [,] based on pre-existing law, the unlawfulness of the conduct in question is apparent." Shipp v. McMahon, 234 F.3d 907, 915 (5th Cir. 2000), cert. denied, 121 S.Ct. 2193 (2001). This determination must be made in light of Fifth Circuit and Supreme Court precedent. Id.
A.
The court initially observes that plaintiff has failed to state a claim for cruel and unusual punishment under the Eighth Amendment. While other courts have recognized an Eighth Amendment right not to be deprived of state-mandated sentence credits through the deliberate indifference of prison officials, the Fifth Circuit has rejected this interpretation of the cruel and unusual punishments clause. See Jones v. City of Jackson, 203 F.3d 875, 880 (5th Cir. 2000) (holding that challenge to fact of incarceration, rather than conditions of incarceration, does not give rise to a claim under the Eight Amendment). Therefore, to the extent plaintiff has alleged the violation of a constitutional right, his claim necessarily arises under the due process clause of the Fourteenth Amendment.B.
Plaintiff contends that defendants violated his right to substantive and procedural due process by refusing to give him credit on his sentence for the time he was held in custody pursuant to an "informal detainer" lodged with the Boston Police Department. (Plf. First Am. Compl. at 15-17, ¶¶ 43-46). in order to bring a due process claim, plaintiff must establish that he has a constitutionally protected or state-created liberty interest. Meachum v. Fano, 427 U.S. 215, 223-34, 96 S.Ct. 2532, 2538, 49 L.Ed.3d 451 (1976); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997). Liberty interests arising from state law are "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless impose [ ] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995) (citations omitted). Only those state-created substantive interests that "inevitably affect" the duration of a prisoner' s sentence may qualify for constitutional protection. Id., 115 S.Ct. at 2302. See also Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996).
There is no federal constitutional right to time credit for any period of confinement pending a state parole revocation. See Jackson v. Alabama, 530 F.2d 1231, 1236-37 (5th Cir. 1976). However, plaintiff claims that he has a right under Texas law to receive credit on his sentence for all time spent in Massachusetts custody as a result of a detainer lodged against him. The relevant statute in effect at the time plaintiff's parole was revoked provided, in pertinent part:
In all criminal cases the judge of the court in which the defendant was convicted shall give the defendant credit on his sentence for the time that the defendant has spent in jail in said cause . . . from the time of his arrest and confinement until his sentence by the trial court.See TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (1991). A person who is arrested in another jurisdiction is considered to be confined "in said cause" when a detainer or hold has been lodged against him by Texas authorities. Ex parte Bynum, 772 S.W.2d 113, 114 (Tex.Crim.App. 1989), citing Ex parte Spates, 521 S.W.2d 265, 266 (Tex.Crim.App. 1975); Nixon v. State, 572 S.W.2d 699, 701 (Tex.Crim.App. 1978); Fernandez v. State, 775 S.W.2d 787, 789 (Tex.App.-San Antonio, 1989, no pet.). Plaintiff reasons that once Texas parole officials instructed the Boston Police Department to "hold" him without bond pursuant to a pre-revocation warrant, he was in the "constructive custody" of the State of Texas and entitled to sentence credit under the statute. See Bynum, 112 S.W.2d at 115; Ex parte Pizzalota, 610 S.W.2d 486, 488 (Tex.Crim.App. 1980); Ex parte Jasper, 538 S.W.2d 782, 784 (Tex.Crim.App. 1976). See also Hannington v. State, 832 S.W.2d 355, 356 (Tex.Crim.App. 1992) ("No formal detainer is required if it is established by some other means that the prisoner is detained in [the Texas] cause.").
The gap in plaintiff's logic is that the plain terms of article 42.03, § 2(a) do not apply in the context of a parole revocation. The statute allows sentence credit for time spent in jail "in said cause . . . from the time of [the defendant's] arrest and confinement until his sentence by the trial court." TEX. CODE CRIM. PROC. ANN. art. 42.03, § 2(a) (emphasis added). A parolee has already been sentenced by the trial court "in said cause." Parole is a conditional release from physical custody "so that the inmate may serve the remainder of the inmate's sentence under the supervision of the pardons and paroles division." TEX. GOV'T CODE ANN. § 508.001(6) (Vernon 1999). The revocation of parole merely returns the parolee to actual, physical custody to serve out the remainder of his original sentence. Ex parte Randall, 941 S.W.2d 136, 137 (Tex.Crim.App. 1997), quoting TEX. CODE CRIM. PROC. ANN. art. 42.18, § 14(a), now TEX. GOV'T CODE ANN. § 508.283 (Vernon Supp. 2001). in other words, the revocation of parole is merely "a `continuing consequence' of the original conviction," not a new criminal conviction. Ex Parte Bowen, 746 S.W.2d 10, 12 (Tex.App. — Eastland 1988, writ ref'd), quoting State v. Dupard, 609 P.2d 961, 965 (Wash. 1980); see also Ex parte Daniel, 781 S.W.2d 412, 413-14 (Tex.App.-Houston [1st Dist] 1989, writ ref d) ("In a revocation of parole, the parolee will serve only the sentence for which he was imprisoned before being granted parole.").
It seems hardly surprising, then, that none of the Texas cases cited by plaintiff involve sentence credit claims by parolees. Cf. Hannington, 832 S.W.2d at 355 (original conviction); Bynum, 111 S.W.2d at 114 (separate conviction for assault on prison guard while incarcerated); Ex parte Kuban, 763 S.W.2d 426, 426 (Tex.Crim.App. 1989) (deferred adjudication); Ex parte Crossley, 586 S.W.2d 545, 546 (Tex.Crim.App. 1979) (probation revocation); Jasper, 538 S.W.2d at 783 (original conviction); Spates, 521 S.W.2d at 266 (probation revocation). Rather, the statute applicable to the facts of this case provides:
Plaintiff also cites Russo v. Johnson, 129 F. Supp.2d 1012 (S.D. Tex. 2001) as authority for his entitlement to sentence credit for time spent in Massachusetts custody. Although Russo suggests in dicta that article 42.03, § 2(a) may be applicable to a parole revocation proceeding, the court had no occasion to apply the statute because no detainer or hold had been placed against the parolee. Russo, 129 F. Supp.2d at 1019.
A prisoner for whose return a warrant has been issued shall, after the issuance of such warrant, be deemed a fugitive from justice and if it shall appear that he has violated the conditions or provisions of his mandatory supervision or parole, the time from the issuing of such warrant to the date of his arrest shall not be counted as any part of the time to be served under his sentence.
TEX. CODE CRIM. PROC. ANN. art. 42.18, § 13(b) (1991), now TEX. GOV'T CODE ANN. § 508.253 (Vernon 1998) (emphasis added). Although Texas authorities issued a pre-revocation warrant for plaintiff on January 5, 1988, that warrant was never executed and was ultimately withdrawn. Because plaintiff was never arrested on the warrant, there is no state-created right to sentence credit for the time he spent in Massachusetts custody. Russo v. Johnson, 129 F. Supp.2d 1012, 1019 (S.D. Tex. 2001). This is fatal to his Fourteenth Amendment due process claim.
Had plaintiff been arrested on the pre-revocation warrant, he would have been entitled to sentence credit for time spent in Massachusetts custody from and after the date the warrant was executed. Ex parte Price, 922 S.W.2d 957, 958-59 (Tex.Crim.App. 1996) (holding that parolee is entitled to sentence credit in such circumstances under the Texas Constitution); Ex parte Canada, 754 S.W.2d 660, 665-66 (Tex.Crim.App. 1988) (same). However, TDCJ-PD was not constitutionally required to execute the warrant while plaintiff was in custody. Russo, 129 F. Supp.2d at 1019, citing Moody v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 278-79, 50 L.Ed.2d 236 (1976). Nor is the mere entry of a detainer tantamount to an arrest. See Moody, 97 S.Ct. at 278-79 (noting that detainer merely expressed parole board's intent to consider parole revocation and that "execution of the warrant and custody under that warrant [are] the operative event[s] triggering any loss of liberty attendant upon parole revocation").
C.
Even were the court to find that plaintiff had sufficiently alleged a due process violation, he still could not demonstrate that such right was "clearly established." See Hope, 122 S.Ct. at 2515. A right is clearly established if "the contours of the right [are] sufficiently clear that a reasonable official would understand that what he is doing violates that right." Id., quoting Anderson, 107 S.Ct. at 3034. The relevant inquiry in this case is whether defendants, by denying plaintiff credit for time spent in Massachusetts custody after a detainer was lodged against him, violated his right to substantive or procedural due process. See Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 1700, 143 L.Ed.2d 818 (1999) ("[T]he right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established."). Though plaintiff need not show that the specific conduct in question has been held unlawful in identical circumstances, he must identify pre-existing Fifth Circuit or Supreme Court precedent recognizing that "certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand . . . " Katz, 121 S.Ct. at 2156.
As noted previously, the court has not found a single case applying article 42.03, § 2(a) in the context of a parole revocation proceeding. If the state habeas court had been correct in determining that plaintiff was entitled to credit on his sentence for time spent in Massachusetts custody by virtue of the "informal detainer" lodged against him, it would have been the first court to do so. Only at that point could the right be considered "clearly established." As a result, defendants are entitled to qualified immunity. See Campbell v. Peters, 256 F.3d 695, 700-02 (7th Cir. 2001), cert. denied, 122 S.Ct. 1363 (2002) (prison officials entitled to qualified immunity for reasonably, although erroneously, denying sentence credits to inmate where state law governing such claim was subject to differing interpretations); Sorenson v. Ferrie, 134 F.3d 325, 330 (5th Cir. 1998) (officers entitled to qualified immunity where state statute and caselaw interpreting it were ambiguous).
CONCLUSION
Defendants' second motion for summary judgment on the ground of qualified immunity is granted. By separate order this date, the court will enter a final judgment dismissing all claims against the defendants with prejudice.
SO ORDERED.