Opinion
No. 3:01-CV-2780-D
June 26, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of Title 28, United States Code, Section 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions and Recommendation of the United States Magistrate Judge follow:
FINDINGS AND CONCLUSIONS
I. NATURE OF THE CASE
Plaintiff brings this action pursuant to 42 U.S.C. § 1983 for violation of his civil rights.
II. BACKGROUND
On December 26, 2001, Plaintiff filed this action against Janie Cockrell, Director of the Texas Department of Criminal Justice, Institutional Division, and Victor Rodriguez, Director of Pardons and Paroles. Plaintiff argues that the Pardons and Paroles Board ("Board") violated his constitutional rights by denying him release on parole. Plaintiff states the Board denied him parole because it determined that his good time credit was not an accurate reflection of his potential for rehabilitation. Plaintiff argues that this determination gives him no control over when or if he will be paroled. Plaintiff seeks monetary damages and asks the Court to investigate and correct the Board's decision.
III. DISCUSSION
Plaintiffs complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
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 suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal — (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Applying the screening procedures to Plaintiffs complaint, the Court finds the complaint should be dismissed as duplicative and for failure to state a claim on which relief may be granted.
A. The complaint is duplicative
To the extent that Plaintiffs civil rights complaint challenges the fact or duration of his confinement, it must be construed as an application for writ of habeas corpus under 28 U.S.C. § 2254. See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983). Plaintiff, however, has sought habeas relief on the same grounds in a separate action. That case is still pending. See Jeffrey v. Cockrell, No. 3:01-CV-2641-P (N.D. Tex. filed December 13, 2001). Accordingly, Plaintiffs claims that he should be released to probation or mandatory supervision should be dismissed as duplicative.
B. The complaint fails to state a claim on which relief may be granted
Additionally, a convicted person has no inherent constitutional right to be conditionally released before the expiration of a valid sentence. Greeholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 7 (1979). State statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause. See Board of Pardons v. Allen, 482 U.S. 369, 371 (1987). A constitutional expectancy of early release exists only in Texas' mandatory supervision scheme which was in place for crimes committed before September 1, 1996. Malchi v. Thaler, 211 F.3d 953, 957-59 (5th Cir. 2000). For crimes committed after September 1, 1996, it is entirely speculative whether a prisoner will be released on parole or "discretionary mandatory supervised release." Id.
Further, under the Texas scheme, a parole board is not required to state its reasons for denying parole, nor does it create any constitutionally protected interest in a tentative release date prior to the termination of the sentence imposed. Johnson v. Rodriguez, 110 F.3d 299, 303 (5th Cir. 1997). Nor do Texas prisoners have due process rights in parole. The protections of the Due Process Clause are only invoked when State procedures may produce erroneous or unreliable results that imperil a protected liberty or property interest. "It is therefore axiomatic that because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds." Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (citations omitted).
In this case, Plaintiff was convicted on May 27, 1999. Therefore, the applicable Texas law does not create a constitutionally protected liberty interest in parole. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997); see also, Mayabb v. Johnson, 168 F.3d 863, 871 (5th Cir. 1999) (holding that a Texas inmate has no constitutional right to parole). Accordingly, since Plaintiffs conviction occurred after September 1, 1996, he is ineligible for the pre-September 1, 1996, type of mandatory supervised released which carried with it a liberty interest. Plaintiff has not shown that the denial of discretionary mandatory supervised release violated any constitutional right.
See Petition for writ of habeas corpus in cause number 3:01-CV-2641-P.
RECOMMENDATION
For the foregoing reasons, the Court recommends that the District Court dismiss Plaintiffs complaint under 42 U.S.C. § 1983 as duplicative and for failure to state a claim upon which relief may granted.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT
The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Plaintiff. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).