Opinion
Civil Action No. 1:02-CV-206-C
October 23, 2002
ORDER
Plaintiff Willie J. Nelson ("Nelson"), acting pro se, filed suit pursuant to 42 U.S.C. § 1983 and was allowed to proceed in forma pauperis. Plaintiff alleges that he was denied parole in 1999 and that he subsequently learned that Mr. A. Strang, a parole counselor for the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"), had forged his signature on his 1999 parole plan. He argues that this forgery violated his constitutional rights under the Eighth and Fourteenth Amendments and "probably" resulted in his continued incarceration. He requests punitive damages and a permanent injunction to prevent the TDCJ Parole Division from forging inmates' signatures
When a prisoner seeks to proceed in forma pauperis, "[n]otwithstanding 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 the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.A. § 1915(e)(2)(B) (West 1994 and Supp. 2000). See 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (stating that when a prisoner seeks redress from a governmental entity or one of its employees, the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); 42 U.S.C.A. § 1997e(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant).
A claim is frivolous if it has no arguable basis in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist" Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless?" Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.2d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiffs allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996) A civil rights plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). See Wesson v. Ogleby, 910 F.2d 278, 281 (5th Cir. 1990) ("An IFP complaint that recites bare legal conclusions, with no suggestion of supporting facts, or that postulates facts of an entirely fanciful nature, is a prime candidate for dismissal under [§ 1915(d)(2)(B)]."). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97.
"Section 1983 is an appropriate legal vehicle to attack unconstitutional parole procedures or conditions of confinement." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (quoting Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994)). "If; however, a prisoner is challenging the result of a specific defective parole hearing, or is challenging a parole board's rules and procedures that affect his release, and resolution would automatically entitle him to accelerated release, then the challenge must be pursued by writ of habeas corpus." Id. Plaintiff attached copies of his TDCJ-ID gievances to his complaint and noted on the grievances that he was not challenging the specific parole decision; rather, he was challenging the procedure which allowed someone to forge his signature to a proposed parole plan. Therefore, his complaint is properly brought under 42 U.S.C. § 1983.
"To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988).
The United States Court of Appeals for the Fifth Circuit has clearly stated that Texas law does not create a liberty interest in parole, and hence, a prisoner of the State of Texas cannot state a due process violation based on the Texas Board of Pardons and Paroles' procedures. Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle, 65 F.3d at 32. Accordingly, Plaintiff has failed to demonstrate the violation of a constitutional right by simply alleging that his signature was forged on a parole plan. See Johnson v. Rodriguez, 110 F.3d at 308 (holding a complaint that the parole board considered unreliable or even false information in a parole decision, "without more, simply [did] not assert a federal constitutional violation"); Else: v. Johnson, 104 F.3d 83 (5th Cir. 1997) (holding that a complaint failed to raise a constitutional violation where the inmate argued that the parole board considered a dismissed criminal charge).
For these reasons, the Court finds that Plaintiff's civil rights complaint should be dismissed with prejudice as frivolous and for failure to state a claim.
Judgment shall be entered accordingly.
The dismissal of Plaintiff's complaint does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed.
All pending motions are hereby denied.
Plaintiff is advised that if he appeals this Order, he shall be required to pay the appeal fee of $105.00 pursuant to the Prison Litigation Reform Act, and he must submit an application to proceed in forma pauperis and a certified copy of his 6-month Certificate of Inmate Trust Account along with his notice of appeal.