United States District Court, N.D. Texas, Lubbock DivisionOct 23, 2002
Civil Action No. 5:02-CV-250-C (N.D. Tex. Oct. 23, 2002)

Civil Action No. 5:02-CV-250-C

October 23, 2002


SAM R CUMMINGS, United States District Judge.

Plaintiff James Lewis Redic, acting pro se, filed a civil rights complaint pursuant to 42 U.S.C. § 1983 on October 15, 2002, and was granted permission to proceed in forma pauperis. Plaintiff's only complaint is that

TDCJ-ID has denied me credit for the 7 years and 11 months that I spent out on parole thus lengthening his [sic] original sentence and making it discontinuous which is an unconstitutional exercise of judicial power.

The only relief that he requests is "to be granted all time spent on parole."

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.3d 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 plaintiffs 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.

"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). A prisoner has no constitutional or inherent right to be released on parole. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979 ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."). It is well-established that a federal habeas petitioner's claim that he was unconstitutionally denied credit for "street time" spent on parole is without merit. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997); Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Starnes v. Cornett, 464 F.2d 524 (5th Cir. 1972); Cox v. Texas, 433 F.2d 982 (5th Cir. 1970); and Campos v. Johnson, 958 F. Supp. 180, 1182 (W.D. Tex. 1997). Texas law specifically states that a state prisoner is not entitled to credit for time spent on parole or mandatory supervision. Morrison v. Johnson, 106 F.3d at 129. See Tex. Code of Crim. P. Ann. art. 42.18 § 14(a) (Vernon Supp. 1990) (currently Tex. Gov't Code Ann. § 508.156(e) (2000)) ("When a person's parole, mandatory supervision, or conditional pardon is revoked, that person may be required to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated without credit for time from the date of his release to the date of revocation.").

Thus, Plaintiff's civil rights claim should be dismissed with prejudice as frivolous and for failure to state a claim.

Nevertheless, the United States Court of Appeals for the Fifth Circuit has determined that pro se complaints should be construed liberally and has approved the recharacterization of pro se prisoner complaints "according to the essence of the prisoner's claims, regardless of the label that the prisoner places on his complaint." Solsona v. Warden, F. CL, 821 F.2d 1129, 1132 n. 1 (5th Cir. 1987).

Although Plaintiff filed his complaint under 42 U.S.C. § 1983, a § 1983 civil rights complaint is generally used to attack unconstitutional conditions of confinement or prison policies and procedure and a habeas petition filed pursuant to 28 U.S.C. § 2254 is more properly used to seek an immediate or accelerated release from prison or custody. Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997). See Calderon v. Ashmus, 523 U.S. 740, 747 (1998) ("[A]ny claim by a prisoner attacking the validity or duration of his confinement must be brought under the habeas sections of Title 28 of the United States Code."); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973) (holding that when an inmate challenges the very fact or duration of his confinement and the relief he seeks is immediate or speedier release, "his sole federal remedy is a writ of habeas corpus"). The Court has carefully examined Plaintiff's complaint and finds that because he is seeking release from confinement, his complaint is more properly considered as a petition for a writ of habeas corpus under 28 U.S.C. § 2254. See Davis v. Fechtel, 150 F.3d 486, 487 (5th Cir. 1998) ("[A] court may liberally construe a pro se petitioner's pleading and treat it as a habeas corpus petition, where appropriate.").

Plaintiff, however, has already filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 and complained that he was denied credit for the 7 years and 11 months that he spent on parole. This Court takes judicial notice of Civil Action No. 5:02-CV-112-C filed on May 24, 2002, in the United States District Court for the Northern District of Texas, Lubbock Division. By Order dated July 24, 2002, Plaintiff's § 2254 petition was dismissed with prejudice as time-barred and for failure to show that he had been deprived of a right secured to him by the United States Constitution. See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995) (holding that a prisoner must demonstrate the deprivation of a right secured to him by the Constitution or laws of the United States before he is entitled to federal habeas relief). Although this Court subsequently denied Plaintiff's request for a certificate of appealability, Plaintiff has appealed the dismissal of his § 2254 petition (USCA # 02-11028).

Pursuant to 28 U.S.C. § 2244(b)(3)(A), a second or successive habeas corpus proceeding may not be filed unless the petitioner moves "in the appropriate court of appeals for an order authorizing the district court to consider the application." See Moran v. Stalder, 121 F.3d 210, 211 (5th Cir. 1997) (holding that petitioners filing their § 2254 petitions in federal district court after April 24, 1996, are subject to the "successive" provisions enacted by the Antiterrorism and Effective Death Penalty Act of 1996). The Supreme Court observed in Felker v. Turpin, 518 U.S. 651, 664 (1996), that this requirement "simply transfers from the district court to the court of appeals a screening function which would previously have been performed by the district court."

Plaintiff has not demonstrated that he has obtained authorization from the United States Court of Appeals for the Fifth Circuit to file a successive petition; therefore, this Court is without jurisdiction to consider Plaintiff's claims under § 2254. In re Epps, 127 F.3d 364, 365 (5th Cir. 1997) (setting forth procedures which must be followed to request authorization to file a successive § 2254 petition).

For these reasons, the Court finds that:

1. To the extent that Plaintiff has raised his complaint under 42 U.S.C. § 1983, all claims alleged therein should be DISMISSED with prejudice for failure to state a claim and as frivolous.
2. To the extent that Plaintiff's claims are more properly considered under 28 U.S.C. § 2254, his claims should be dismissed without prejudice to his right to seek permission to file a successive claim.
3. This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
4. The dismissal of this complaint does not release Plaintiff or the institution where he is incarcerated from any previously imposed fee orders.

Judgment shall be entered accordingly.

All pending motions are hereby denied.

Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $105.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal.

Plaintiff is cautioned that the continued filing of repetitive or malicious claims may result in the imposition of sanctions.