Opinion
No. 2:02-CV-0299
January 13, 2003
REPORT AND RECOMMENDATION
Plaintiff PAUL JOSEPH TRAHAN, JR., acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendant and has been granted permission to proceed in forma pauperis.
Plaintiff claims that, in September of 1985, he entered a plea of guilty to one count of forgery and one count of indecency with a child, receiving a sentence of ten years deferred adjudication. His states his "probation was revoked" (the Court takes notice plaintiff probably means his case was adjudicated) in February of 1995, and he was sentenced to be confined in TDCJ-ID for eight years on the forgery count and fifteen years on the indecency with a child count. Following an August 2000, release on mandatory supervision, his supervision was revoked and, on February 27, 2002, plaintiff was again incarcerated in TDCJ-ID. Plaintiff complains he will someday be required to comply with the Texas Sex Offender Registration statute.
Plaintiff asks that the Court find the Texas Sex Offender Registration statute violates the Ex Post Facto Clause of the United States Constitution.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali 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. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 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 plaintiff's pleadings and has viewed the facts alleged by plaintiff to determine if his claims present grounds for dismissal or should proceed to answer by defendant.
THE LAW AND ANALYSIS
Article 62.02 of the Texas Code of Criminal Procedure requires a person who has a reportable conviction or adjudication or who is required to register as a condition of parole, release to mandatory supervision, or community supervision to register or verify registration with local law enforcement as provided by Subsection (d) of that article. This results in a required person registering his name and address as a sex offender and having his status published.
As noted by the state appellate court in Rodriguez v. Texas, 71 S.W.3d 800 (Tex.App.-Texarkana 2002, no pet.), there have been multiple amendments to the sex offender registration statute, and it has not survived a legislative session without some change since its original passage.
Plaintiff has not yet been required to register and does not indicate he has failed to register in the past or suffered a penalty for any such failure. There is no certitude that plaintiff will ever be subjected to the current statutory requirements; and, for that reason, plaintiff's claim is not ripe. Accord, Rodriguez v. Texas, 71 S.W.3d 800 (Tex.App.-Texarkana 2002, no pet.) (citing People v. Griffin, 171 Misc.2d 145, 652 N.Y.S.2d 922, 926 n. 3 (N.Y.Sup.Ct. 1996)(defendant's challenge to registration and notification requirements of a sex offender registration act is not ripe where the defendant has no obligation to register until the completion of the incarceration). Because plaintiff's claim is not yet ripe, there is no present case or controversy before the Court; and this case must be dismissed for want of jurisdiction.
CONCLUSION
For the reasons set forth above, 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 PAUL JOSEPH TRAHAN, JR., be DISMISSED WITHOUT PREJUDICE FOR WANT OF JURISDICTION.
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.