IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION THOMAS WALLACE #2284399 § § V. § A-20-CV-829-LY § WARDEN MAREZ and DIRECTOR § BOARD OF PARDONS AND PAROLES § REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis. STATEMENT OF THE CASE At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the Travis State Jail. Plaintiff was convicted of possession of a controlled substance in Jefferson County, Texas, in
cause number 14-19557 and was sentenced to three years in a state jail. According to Plaintiff, he is also 1 currently on parole for a 35-year sentence. For that sentence Plaintiff was convicted of possession of a controlled substance with intent to deliver in Kaufman County, Texas, in cause number 23383-422.
Plaintiff indicates he was also convicted of evading arrest or detention with a vehicle. According to Plaintiff, he served his five-year sentence for that conviction day-for-day. Plaintiff complains, when he is reviewed for parole on his current drug conviction, parole officials take into consideration his conviction for evading arrest. Plaintiff argues his expired sentence and conviction should have no effect on his parole consideration. Plaintiff argues such consideration violates the Double Jeopardy Clause. Plaintiff does not
make clear whether he is also alleging the consideration of the prior conviction is a violation of his due process rights. Plaintiff maintains his good time credits are not worth the paper on which they are written. Plaintiff sues Warden Marez and the Director of the Board of Pardons and Paroles. He requests that he be reviewed for parole only for the sentence he is currently serving and not for a charge where he has completely served the sentence.
DISCUSSION AND ANALYSIS An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant’s
answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial 2 machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
The Constitution does not create a liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law makes parole discretionary and does not create a liberty interest in parole protected by the Due Process Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Because Texas inmates have no protected liberty interest in parole, they cannot have a liberty interest in
parole consideration or other aspects of parole procedures. Id. at 308 (stating that Texas prisoners cannot mount a challenge against any state parole review procedure on procedural or substantive due process grounds). It is entirely up to each State whether it chooses to create a parole system and the amount of discretion with which it entrusts its parole decisionmakers. Thus, parole is a privilege, not a right, even after an inmate accrues the minimum amount of time-
served credit necessary to be eligible for parole. See Greenholtz, 442 U.S. at 7 (convicted persons have no constitutional right to be conditionally released before the expiration of a valid sentence); 37 TEX. ADMIN. CODE § 145.3(1) (“Release to parole is a privilege, not an offender right, and the parole decision maker is vested with complete discretion to grant, or to deny parole release as defined by statutory law.”). An inmate who has met the minimum requirement for time served under the applicable parole eligibility
statute is not automatically entitled to be released on parole; rather, he is only entitled to a review to determine whether or not he will be released on parole. See 37 TEX. ADMIN. CODE § 145.3(1) (“[T]he parole decision maker is vested with complete discretion to grant, or to deny parole release. . . .”) (emphasis added); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (because a prisoner has no liberty 3 interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions). Because Plaintiff has no liberty interest in obtaining parole in Texas, he has
no claim for violation of due process in the procedures attendant to his parole decisions. Orellana, 65 F.3d at 31. Plaintiff also has not stated a valid double jeopardy claim. The denial of release on parole is not an additional punishment. Olstad v. Collier, 326 Fed. Appx. 261, 265 (5th Cir. 2009) (citation omitted). Petitioner’s three-year sentence has not been extended by the Board of Pardons and Paroles, and his
eligibility for parole has not been changed. Rather, the Board determined Petitioner was not suitable for release on parole. This does not violate the Double Jeopardy Clause. RECOMMENDATION It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that the Court include within its judgment a provision expressly and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff from filing any lawsuits in this Court without first obtaining the permission from a District Judge of this Court or a Circuit Judge of the Fifth
Circuit; or (d) the imposition of an order imposing some combination of these sanctions.
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION THOMAS WALLACE #2284399 § § V. § A-20-CV-829-LY § WARDEN MAREZ and DIRECTOR § BOARD OF PARDONS AND PAROLES § REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.
Before the Court is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis. STATEMENT OF THE CASE At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the Travis State Jail. Plaintiff was convicted of possession of a controlled substance in Jefferson County, Texas, in
cause number 14-19557 and was sentenced to three years in a state jail. According to Plaintiff, he is also 1 currently on parole for a 35-year sentence. For that sentence Plaintiff was convicted of possession of a controlled substance with intent to deliver in Kaufman County, Texas, in cause number 23383-422.
Plaintiff indicates he was also convicted of evading arrest or detention with a vehicle. According to Plaintiff, he served his five-year sentence for that conviction day-for-day. Plaintiff complains, when he is reviewed for parole on his current drug conviction, parole officials take into consideration his conviction for evading arrest. Plaintiff argues his expired sentence and conviction should have no effect on his parole consideration. Plaintiff argues such consideration violates the Double Jeopardy Clause. Plaintiff does not
make clear whether he is also alleging the consideration of the prior conviction is a violation of his due process rights. Plaintiff maintains his good time credits are not worth the paper on which they are written. Plaintiff sues Warden Marez and the Director of the Board of Pardons and Paroles. He requests that he be reviewed for parole only for the sentence he is currently serving and not for a charge where he has completely served the sentence.
DISCUSSION AND ANALYSIS An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant’s
answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial 2 machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
The Constitution does not create a liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law makes parole discretionary and does not create a liberty interest in parole protected by the Due Process Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Because Texas inmates have no protected liberty interest in parole, they cannot have a liberty interest in
parole consideration or other aspects of parole procedures. Id. at 308 (stating that Texas prisoners cannot mount a challenge against any state parole review procedure on procedural or substantive due process grounds). It is entirely up to each State whether it chooses to create a parole system and the amount of discretion with which it entrusts its parole decisionmakers. Thus, parole is a privilege, not a right, even after an inmate accrues the minimum amount of time-
served credit necessary to be eligible for parole. See Greenholtz, 442 U.S. at 7 (convicted persons have no constitutional right to be conditionally released before the expiration of a valid sentence); 37 TEX. ADMIN. CODE § 145.3(1) (“Release to parole is a privilege, not an offender right, and the parole decision maker is vested with complete discretion to grant, or to deny parole release as defined by statutory law.”). An inmate who has met the minimum requirement for time served under the applicable parole eligibility
statute is not automatically entitled to be released on parole; rather, he is only entitled to a review to determine whether or not he will be released on parole. See 37 TEX. ADMIN. CODE § 145.3(1) (“[T]he parole decision maker is vested with complete discretion to grant, or to deny parole release. . . .”) (emphasis added); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (because a prisoner has no liberty 3 interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions). Because Plaintiff has no liberty interest in obtaining parole in Texas, he has
no claim for violation of due process in the procedures attendant to his parole decisions. Orellana, 65 F.3d at 31. Plaintiff also has not stated a valid double jeopardy claim. The denial of release on parole is not an additional punishment. Olstad v. Collier, 326 Fed. Appx. 261, 265 (5th Cir. 2009) (citation omitted). Petitioner’s three-year sentence has not been extended by the Board of Pardons and Paroles, and his
eligibility for parole has not been changed. Rather, the Board determined Petitioner was not suitable for release on parole. This does not violate the Double Jeopardy Clause. RECOMMENDATION It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e).
It is further recommended that the Court include within its judgment a provision expressly and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in (a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff from filing any lawsuits in this Court without first obtaining the permission from a District Judge of this Court or a Circuit Judge of the Fifth
Circuit; or (d) the imposition of an order imposing some combination of these sanctions. It is further recommended that Plaintiff should be warned that for causes of action which accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate while the inmate was 4 in the custody of the Department or confined in county jail awaiting transfer to the Department following conviction of a felony or revocation of community supervision, parole, or mandatory supervision, is
authorized to forfeit (1) 60 days of an inmate’s accrued good conduct time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued good conduct time, if the Department has previously received two final orders; or (3) 180 days of an inmate’s accrued good conduct time, if the Department has previously received three or more final orders. See TEX. GOV’T CODE ANN. § 498.0045 (Vernon 2005).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure to state a claim on which relief may be granted, then he will be prohibited from bringing any other actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C. § 1915(g). In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ - Office of the General Counsel and the keeper of the three-strikes list. OBJECTIONS Within 14 days after receipt of the magistrate judge’s report, any party may serve and file written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636 (b)(1)(C).
Failure to file written objections to the proposed findings and recommendations contained within this report within 14 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and from appellate review of factual findings accepted or adopted by the district court except on grounds of plain error or manifest injustice. Douglass v. United Servs. 5 Auto. Assoc., 79 F.3d 1415 (Sth Cir. 1996)(en banc); Thomas vy. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cr. 1988). SIGNED on August 21, 2020.
MARK LANE | | UNITED STATES MAGISTRATE JUDGE