Opinion
3:03-CV-2331-P
October 21, 2003
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 by a state inmate pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Rudd Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Brownfield, Texas. Defendants are TDCJ-CID Director Douglas Dretke, Regional Hearing Officer Gary R. Swain, Agent Officer Catherine Looper, and Parole Officer Chantle Blackmon. The court has not issued process in this case.
Statement of Case: The complaint challenges the decision to revoke Plaintiffs parole on July 18, 2002, for failing to appear one time in more than four and one-half years, and for failing to pay $66 in parole fees. Plaintiff alleges that Defendants' decision to revoke his parole was motivated by malice and an intent to deceive which violated his due process rights. He alleges the following constitutional deprivations: (1) he was denied appointed counsel at his parole revocation hearing; (2) he was deprived of the opportunity to defend himself; (3) he was improperly accused of drug use and other crimes; and (4) his parole revocation was based on the involuntary confession of Melinda Price, who believed parole would not be revoked. Plaintiff requests monetary relief against the named Defendants.
In Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973), the Supreme Court held that at the parole revocation stage there is no absolute right to counsel, and the need for counsel is determined on a case-by-case basis.
In the memorandum in support of the complaint, Plaintiff states that this civil rights complaint is "an amplification of the original writ" of habeas corpus pursuant to 28 U.S.C. § 2254, which he filed in the Northern District of Texas on July 31, 2003, and which has been referred to the undersigned Magistrate Judge. See LaFoe v. Dretke, 3:03cv 1722-M (N.D. Tex., Dallas Div.). (At the present time his habeas petition is not ripe for review).
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).
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous." 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).
Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), the court must dismiss a complaint brought pursuant to § 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 v. Bd. 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). Under such circumstances, this § 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.
Plaintiffs claims for monetary damages are clearly connected to the legality of his present confinement. A finding in favor of Plaintiff would imply the invalidity of his parole revocation, which is the basis for his present confinement. Until Plaintiff receives a ruling declaring his parole revocation invalid, no action can accrue under § 1983.Heck, 512 U.S. at 488-89; Randell v. Johnson, 227 F.3d 300, 301 (5th Cir. 2000) ("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. . . ."). As noted above, Plaintiffs federal habeas action challenging his parole revocation is still pending in this court. See Cause No. 3:03cv 1722-M, supra. Consequently Plaintiffs claims challenging his parole revocation 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 Plaintiffs complaint with prejudice to it being reasserted when the Heck conditions are met. See Johnson v. McEleveen, 101 F.3d 423, 424 (5th Cir. 1996).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court dismiss Plaintiffs complaint with prejudice as frivolous to it being reasserted when the Heck conditions are met. 28 U.S.C. § 1915A(b)(1) and 1915(e)(2)(B)(i).
A copy of this recommendation will be mailed to Plaintiff.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.