Swiger v. Gutierrez

• Court: District Court, S.D. Texas
• Decided: May 23, 2022
• Docket: 4:22-cv-00756
• Status: Unknown

Opinion

□ Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT May 24, 2022 FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk HOUSTON DIVISION JEREMIAH JOSEPH SWIGER, § § Plaintiff, § § Civil Action No. H-22-0756 v. § § DAVID GUTIERREZ, et al., § § Defendants. §

MEMORANDUM OPINION AND ORDER Plaintiff, a state inmate proceeding pro se, filed a civil lawsuit under 42 U.S.C.§ 1983 complaining that he was denied release to parole in 2021. He seeks monetary damages, immediate release from prison, and a full pardon. Having screened the lawsuit under 28 U.S.C. §§ 1915A and 1915(e), the Court DISMISSES the lawsuit for the reasons shown below. I. ANALYSIS Itis well settled that state prisoners have no federal constitutional right to early release to parole. See Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 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.”); Orellena v. Kyle, 65 F.3d 29, 31-32 (1995); Pohl v. Livingston, 241 F. App’x 180, 181 (Sth Cir. 2007) (“This court has determined that Texas law does not create a liberty interest in parole that is protected by the Due Process Clause.”).

The decision to grant or deny parole is discretionary under Texas law, and the Texas parole statutes do not create a protected liberty interest which would implicate constitutional considerations. See Madison v. Parker, 104 F.3d 765, 768 (Sth Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (Sth Cir. 1995). It is likewise “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 (Sth Cir. 1997). Thus, Texas state prisoners may not challenge “the constitutionality of procedural devices attendant to parole decisions.” Orellana, 65 F.3d at 32. Because plaintiff in this case enjoys no constitutional right to parole, the denial of his release to parole did not give rise to a colorable claim for relief under section 1983, and his lawsuit must be dismissed. Il. CONCLUSION This lawsuit is DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted under section 1983. Any and all pending motions are DENIED

AS MOOT. This dismissal constitutes a “strike” for purposes of section 1915(g), and stands as plaintiff’s second strike. See Swiger v. Thaler, C.A. No. H-13-1446 (S.D. Tex. June 21, 2013). Should plaintiff incur a third strike, he will be prohibited from proceeding in forma

pauperis in federal district or appellate court unless he demonstrates he is under imminent danger of serious physical injury at the time of filing. Signed at Houston, Texas, on this the day of May, 2022.

Roun PL ce. KEITH P. ELLISON UNITED STATES DISTRICT JUDGE