Opinion
2:01-CV-0213
February 23, 2004
REPORT AND RECOMMENDATION
Plaintiff CHARLES RAY CRADDOCK, acting pro se, has filed suit pursuant to Title 42, United States Code, Section 1983 challenging the parole guidelines and procedures utilized in his parole reviews. Plaintiff has paid the filing fee and is not proceeding in forma pauperis.
Plaintiff claims his rights to Due Process have been violated by an Ex Post Facto application of law. Plaintiff also argues he was originally sentenced to 45 years with the expectation that he would make parole the first or second time he was eligible for review because the approval rate was about 80%; however, in succeeding years the rate dropped to about 20%. Plaintiff further claims the parole approval rate in the Amarillo District is only about 12%, the lowest in the State of Texas, creating a "geographic disadvantage" for inmates in the Amarillo area and violating his rights to Equal Protection. Plaintiff claims there exists an assembly-line method of parole review which violates his right to Equal Protection. Plaintiff challenges the use of "Nature and Seriousness of Offense" and of "Criminal Record and/or Nature of Offense" as reasons for a set-off, arguing the inmate cannot overcome these reasons or remedy them and, therefore, they should not constitute a reason to deny parole. Lastly, plaintiff argues that allowing inmates who can afford a Parole Lawyer or Advocate to have one violates the Equal Protection clause by creating a situation in which rich inmates have a better chance of making parole than poor ones.
Plaintiff requests immediate release; that the Board of Pardons and Paroles be required to revise their review standards so they are centralized, that all offenders eligible for parole be interviewed, inmates be given the chance to correct erroneous information in their files; Board members be "scrutinized" by TDCJ to ensure none are biased; and the use of parole lawyer/advocates be discontinued or all inmates be provided such assistance.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may evaluate the complaint and dismiss it without service of process, AH v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991)
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The Magistrate Judge has reviewed plaintiffs pleadings and has viewed the facts alleged by plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW
To the extent plaintiffs request for immediate release converts his civil rights complaint into a mixed petition/complaint, the Court notes that, in such a circumstance, the district court should separate the claims and decide the section 1983 claims. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (citing Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir. 1987)). Consequently, the Court does separate plaintiff's request for release from the remainder of his section 1983 civil rights suit. Plaintiff is instructed that, if he wishes to have this addressed, he may obtain the proper forms for filing a habeas action through his unit law library.
Except to the extent plaintiff requests release, it appears he is making broad-based challenges to the parole board's rules and procedures affecting his release, but it does not appear that these claims, if successful, would necessarily entitle him to accelerated release. Instead, it appears these claims, if successful, would merely enhance his eligibility for release. Thus, his claims, having only an indirect impact on parole determination, may still be cognizable as a civil rights claim. Cook v. Texas Department of Criminal Justice Transitional Planning Dept., 37 F.3d 166, 168 (5th Cir. 1994).
Plaintiff's Ex Post Facto and Due Process claims based on the 1989 amendment of 42.18(a) of the Texas Code of Criminal Procedure changing "shall" to "may" have already been examined by the Fifth Circuit in Creel v. Keene. The Court opined that any "predictive value" of the tentative parole date was eviscerated by subsection (e) which expressly stated that "[t]he Board may revise the tentative parole month established under this subsection at any time the board determines is proper." Creel v. Keene, 928 F.2d 707, 712 (5th Cir. 1991) (construing Vernon's Ann. Texas C.C.P. art. 42.18 § 8(a, e, f); Acts 1987, 70th Leg., p. 3750, ch. 1101, § 1). Thus, the Court concluded that, even as written in 1987 and before the 1989 revision, Texas parole statutes did not give Texas inmates an "expectancy of release" subject to the protections of Due Process. Further, the Court notes an amendment to parole rules does not change the law and, thus, creates no Ex Post Facto Violation. Orellana v. Kyle, 65 F.3d 29, 32-33 (5th Cir. 1995).
Superseded by subsequent amendment.
Plaintiff's argument that the judge sentenced him with the expectation he would make parole at his first or second parole eligibility consideration but that approval rates have declined is liberally construed as an attempt to claim a violation of double jeopardy. Parole determinations which might seem to be an intrusion of the sentencing Judge's intentions or function but which are based upon the applicable parole guidelines do not, for that reason, violate double jeopardy. Accord, Smith v. Bell, 462 F. Supp. 55, 59 (N.D.Tex. 1978), affirmed, Smith v. Bell, 588 F.2d 169 (5th Cir. 1979).
It is noted that plaintiff has not presented anything other than his conclusory allegations to show that the judge or jury who assessed his sentence actually had this expectation and has not plead that an understanding of this nature played a part in any plea bargian.
Plaintiff's challenge to the two set-off categories of "Nature and Seriousness of Offense" and "Criminal Record and/or Nature of Offense" is a Due Process challenge. The denial of parole, as distinguished from the revocation of parole, does not amount to a loss of liberty in the due process context. Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed, 2d 668 (1979); Jackson v. Reese, 608 F.2d 159 (5th Cir. 1979)(citing, in part, Brown v. Lundgren, 528 F.2d 1050 (5th Cir. 1976), cert. denied, 429 U.S. 917, 97 S.Ct. 308, 50 L.Ed.2d 283)). 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 (5th Cir. 1997).
Plaintiff asserts an Equal Protection challenge to an alleged "geographic disadvantage" in that, he states, each of the divisions in the state has a different parole approval rate and that of the Amarillo area is the lowest approval rate in the State of Texas. Further, plaintiff says, Parole Commissioner Thomas Moss "reveled" in that fact. Plaintiff has failed to allege any fact to support his assumption that he, himself, has or will likely suffer any "geographic disadvantage." Further, plaintiff's argument assumes that all the inmates in each division are similarly-situated; however, as recognized by the Fifth Circuit in Cruz v. Skelton, the differing ratios of high security inmates to low security inmates, and differing availability of rehabilitative programs among the divisions will inevitably affect overall parole approval rates for any division when compared with another. Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976). Plaintiff's conclusory allegation that he is subject to a geographic disadvantage is not supported by any pleading of factual specificity showing he has been treated differently from other inmates who are similarly-situated and, therefore, he has failed to state a claim on which relief can be granted.
Lastly, plaintiff's Equal Protection challenge to the practice of allowing lawyers or parole advocates but not appointing them to indigent inmates has also been examined and rejected by the Fifth Circuit. Cruz v. Skelton, 543 F.2d 86 (5th Cir. 1976). Consequently, plaintiff's claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 42, United States Code, section 1997e(c)(1), it is the RECOMMENDATION of the Magistrate Judge to the United States District Judge that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff CHARLES RAY CRADDOCK be DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
The United States District Clerk shall mail a copy of this Report and Recommendation to plaintiff and to each attorney of record by certified mail, return receipt requested. Any party may object to the proposed findings and to the Report and Recommendation within fourteen (14) days from the date of this Order. Rule 72, Federal Rules of Civil Procedure, and Rule 4(a)(1) of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern District of Texas. Any such objections shall be in writing and shall specifically identify the portions of the findings, recommendation, or report to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the Clerk of the Court and serve a copy of such objections on the Magistrate Judge and on all other parties. The failure to timely file written objections to the proposed factual findings, legal conclusions, and the recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) ( en banc).
IT IS SO RECOMMENDED.