Opinion
3:01-CV-2252-P
February 19, 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 pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Diagnostic Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Huntsville, Texas. Defendants are the Texas Department of Criminal Justice — Pardons and Parole Division, Unit Supervisor Robert Elleh, Parole Officer Eddie Brown, Jr., and Unit Supervisor Teague. The court has not issued process in this case. However, on November 30, 2001, the magistrate judge issued a questionnaire to Plaintiff, who filed his answers on December 12, 2001.
Statement of Case: The complaint challenges the issuance of a parole revocation warrant, filed on December 21, 2000. Specifically the complaint alleges that the parole revocation warrant is false and is based on a misdemeanor charge for possession of marijuana, which was never filed. The complaint further alleges that Defendants Elleh, Brown and Teague conspired to violate Plaintiff's civil rights by planning to revoke his parole on the basis of the false parole revocation warrant. He seeks compensatory and punitive damages and declaratory relief (Complaint at 4 and handwritten attachment at 1-4).
The material facts on which Plaintiff's complaint, as supplemented by the answers to the magistrate judge's questionnaire, is predicated are as follows:
On December 4, 2000, Plaintiff was arrested for possession of marijuana, a misdemeanor. He was released on a $500 bond the same day; criminal charges were allegedly never filed. (Answer to Question 4). On December 5, 2000, Defendant Elleh filed a parole report, which was based on Plaintiff's arrest the previous day and which charged him with violating Rule 2. (Id.). On December 21, 2000, a parole revocation warrant was issued for Plaintiff's arrest. (Id). Plaintiff alleges that he continued to report to his parole officer in February and March, and that he was arrested on April 6, 2001, on the outstanding parole revocation warrant. (Id.). He was subsequently charged with possessing marijuana (a new felony case) and bond was set at $15,000. (Id.). On December 6, 2001, Plaintiff pled guilty to the felony charge and punishment was assessed at three years imprisonment. (Answer to Questions 1 and 2).
In his motion to amend the complaint, filed on January 8, 2002, Plaintiff states that his parole was revoked based on false information following a parole revocation hearing on December 14, 2001. (Motion to Amend at 1). He also states that two more parole officials have joined in the alleged conspiracy.
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) ("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 appealth 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 such relief.").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." 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). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Insofar as Plaintiff seeks monetary damages against the Pardons and Parole Division of the TDCJ, such request is barred by the Eleventh Amendment. As a division of the Texas Department of Criminal Justice, the Pardons and Paroles Division is a state agency and, as such, is cloaked with Eleventh Amendment immunity. See Littles v. Ed. 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 § 493.002(a)(3) (Vernon Supp. 2001); Tex. Gov't Code § 493.005 (Vernon 1998).
Plaintiff's request for monetary damages and declaratory relief against Defendants Elleh, Brown, and Teague fares no better. Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the Court must dismiss a complaint brought pursuant to 42 U.S.C. § 1983, when the civil rights action, if successful, would necessarily imply the invalidity of a plaintiffs conviction or sentence, unless the 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 Plaintiff's complaint is that his parole was revoked on the basis of false information and due to the conspiracy of Defendants Elleh, Brown, and Teague. (Answer to Question 4). He seeks monetary and declaratory relief. A ruling granting Plaintiff the relief he seeks would necessarily implicate the validity of his parole revocation and present proceeding prior to bringing an action under § 1983. Heck, 512 U.S. at 486-87.
In Edwards v. Balisok, 520 U.S. 641, 648-49 (1997), the Supreme Court extended the Heck doctrine to cover claims for declaratory relief.
Plaintiff cannot make such showing. Since Plaintiff's parole was revoked less than two months ago, he has not had an opportunity to file a habeas corpus proceeding challenging the same. Until Plaintiff receives a ruling declaring his parole invalid, no action can accrue under § 1983. Id. at 488-89; Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000), cert. denied, ___ U.S ___, 1215 Ct. 1601 (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 it was based on false information and due to the conspiracy of Defendants Elleh, Brown and Teague are "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 against Defendants Elleh, Brown and Teague with prejudice to their being reasserted when the Heck conditions are met. Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996).
Since Plaintiff's claims are barred by Heck, his motion to amend the complaint should be denied as futile. Courts are free to deny motions to amend when the amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962); Greaory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court find Plaintiff's claims for monetary relief against the Texas Department of Criminal Justice, Pardons and Paroles Division 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 and declaratory relief against Defendants Elleh, Brown, and Teague be dismissed with prejudice to their being reasserted when the Heck conditions are met, and that Plaintiff's motion to amend the complaint, filed on January 8, 2002, be denied as futile.