Opinion
No. 3:02-CV-1903-H
October 17, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the court in implementation thereof, this cause has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint brought by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Moore Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ) in Bonham, Texas. Defendants are Victor Rodriguez, Executive Director of the Board of Pardons and Paroles, Hearing Officer Jack Kille, and Supervising Parole Officer Philicia Mitchell. The court has not issued process in this case. However, on September 12, 2002, the Magistrate Judge issued a questionnaire to Plaintiff, who filed his answers on September 27, 2002.
Statement of Case: The complaint challenges the revocation of Plaintiff's parole on the ground he was denied the appointment of counsel at his parole revocation hearing on September 14, 2001. Plaintiff requests monetary and injunctive relief. (Complaint at 3-4).
In Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), the Supreme court held that at the parole revocation stage there is no absolute right to counsel, and the need for counsel is determined on a case-by-case basis.
Plaintiff does not specify what injunctive relief he is seeking. He also requests immediate release from custody. The latter requests is cognizable only in a habeas corpus action. See Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1973); Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (Where a state prisoner attacks the duration of his confinement, "`the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983.'"); Serio v. Members of the Louisiana State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987).
Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from such relief."28 U.S.C. § 1915A (emphasis added). See also 28 U.S.C. § 1915(e)(2)(B).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Plaintiff requests monetary damages against Victor Rodriguez in his official capacity as Executive Director of the Board of Pardons and Paroles. As a division of the Texas Department of Criminal Justice, the Board of Pardons and Paroles is a state agency cloaked with Eleventh Amendment immunity. Littles v. Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995); McGrew v. Texas Bd. of Pardons and Paroles, 47 F.3d 158, 161 (5th Cir. 1995); Tex. Gov't Code Ann. § 493.002(a)(3) (Vernon Supp. 2002) and Tex. Gov't Code Ann. § 493.005 (Vernon 1998). Suits against state officials in their official capacity are considered to be suits against the official's office and, as a result, are barred as suits against the State itself. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989) (holding that States are not persons subject to suit under § 1983, because of the Eleventh Amendment). Therefore, Plaintiff's claim for monetary relief against Defendant Rodriguez in his official capacity is barred by the Eleventh Amendment.
Insofar as Defendant Rodriguez was involved in the decision to revoke Plaintiff's parole, he is likewise protected by absolute immunity. See Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir. 1995) (parole board members, including parole board director and general counsel, were absolutely immune when performing their adjudicative functions as opposed to their administrative functions for which they were entitled to only qualified immunity).
Plaintiff's request for monetary relief against Defendants Kille and Mitchell fares no better. Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the court must dismiss a complaint brought pursuant to §§ 1983, when the civil rights action, if successful, would necessarily imply the invalidity of plaintiff's conviction or sentence, unless plaintiff demonstrates that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. The Fifth Circuit has extended Heck to proceedings that call into question the fact or duration of parole. See Littles, 68 F.3d at 123; McGrew, 47 F.3d at 161. Under such circumstances, the § 1983 action is subject to dismissal under Heck absent a showing that the confinement resulting from the parole revocation proceeding has been invalidated by a state or federal court. Littles, 68 F.3d at 123.
In this instance, the crux of the complaint is that Defendants denied Plaintiff an attorney during his parole revocation hearing. He seeks monetary and injunctive relief. If the Court were to grant damages as Plaintiff requests, such ruling would necessarily implicate the validity of his parole revocation, which is the basis for his present confinement. Accordingly, under Heck, Plaintiff must demonstrate that the confinement resulting from his parole revocation proceeding has been invalidated by a state or federal court. Littles, 68 F.3d at 123.
Plaintiff cannot make such a showing. In answer to question two of the Magistrate Judge's Questionnaire, he concedes he has not challenged the validity of his parole revocation hearing. Until Plaintiff receives a ruling declaring his parole revocation invalid, no action can accrue under § 1983. Heck, 512 U.S. at 488-89; Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, 532 U.S. 971 (2001) ("Because [plaintiff] is seeking damages pursuant to § 1983 for unconstitutional imprisonment and he has not satisfied the favorable termination requirement of Heck, he is barred from any recovery . . . ."). Consequently Plaintiff's claims challenging his parole revocation on the ground that he was denied appointment of counsel is "legally frivolous" within the meaning of sections 1915(e)(2) and § 1915A(b). Hamilton v. Lyons, 74 F.3d 99, 102-103 (5th Cir. 1996) ("A § 1983 claim which falls under the rule in Heck is legally frivolous unless the conviction or sentence at issue has been reversed, expunged, invalidated, or otherwise called into question."). The District Court should dismiss Plaintiff's claims for monetary relief against Defendants Kille and Mitchell without prejudice to them being reasserted when the Heck conditions are met.See Clarke v. Stalder, 154 F.3d 186, 191 (5th Cir.)
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court find Plaintiff's claims for monetary relief against Defendant Victor Rodriguez barred by the doctrine of absolute immunity. It should thus dismiss those claims with prejudice pursuant to 28 U.S.C. § 1915A(b)(2) and 1915(e)(2)(B)(iii).
It is further recommended that Plaintiff's claims for monetary damages against Defendants Jack Kille and Philicia Mitchell be dismissed without prejudice to being reasserted when the Heck conditions are met. 28 U.S.C. § 1915A(b)(2) and 1915(e)(2)(B)(iii).
It is further recommended that Plaintiff's request for injunctive relief and for immediate release from custody be dismissed without prejudice to them being reasserted in a habeas corpus action.
A copy of this recommendation will be mailed to Plaintiff.