Billizone v. Louisiana Department of Probation and Parole et al

Filing 41

ORDER denying as moot 14 Motion to Stay. Signed by Judge Nannette Jolivette Brown. (jrc)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ERNEST BILLIZONE

CIVIL ACTION

VERSUS

NO. 13-5928

LOUISIANA DEPARTMENT OF PROBATION AND
PAROLE et al

SECTION: “G”(4)

ORDER
Plaintiff Ernest Billizone (“Plaintiff”) was formerly incarcerated at the Jefferson Parish
Correctional Center, serving a ten-year sentence. In this § 1983 litigation, Plaintiff alleges that he
was unconstitutionally released “as if on parole,” rather than released outright, after serving his
sentence and receiving “good time.”
Before the Court is Defendants Louisiana Department of Public Safety and Corrections’,
James M. LeBlanc’s, and Lisa Maise’s (collectively, “Defendants”) “Motion to Stay Case Pursuant
to Heck v. Humphrey.”1 In the pending motion, Defendants aver that “[t]here is currently an active
warrant for the arrest of plaintiff for violating the terms and conditions of his parole.”2 According
to Defendants,“[w]hen the plaintiff is arrested (or, more ideally, turns himself in), he will be offered
parole revocation proceedings. In those proceedings, the plaintiff can challenge the fact or duration
of his parole supervision.”3 Defendants maintain that the outcome of the parole revocation
proceedings will dictate whether Plaintiff’s suit is barred pursuant to the Supreme Court’s decision

1

Rec. Doc. 14.

2

Id. at p. 2.

3

Id.

in Heck v. Humphrey.4 Thus, Defendants request that the above-captioned matter be stayed pending
completion of the parole revocation proceedings.”5
On July 16, 2014, the Court ordered that Defendants provide an update on the status of
Plaintiff’s parole revocation proceedings.6
On July 23, 2014, Defendants filed a supplemental memorandum.7 In their supplemental
memorandum, Defendants explain that on June 25, 2014, Plaintiff signed a “Notice of Preliminary
Hearing,” in which he affirmed that “I do not want a Preliminary Hearing and plead guilty to all
violations.”8 Also on June 25, 2014, Plaintiff signed a “Waiver of Final Parole Revocation Hearing,”
stating “I admit that I am in violation of my parole in the manner outlined by my parole officer in
the Notice of Preliminary Hearing” and waiving his right to a final parole violation hearing.9 On July
2, 2014, the Parole Board issued a letter, explaining that it would not revoke Plaintiff’s parole but
that it would add electronic monitoring as a condition of his parole.10
In their memorandum, Defendants additionally contend that “[t]he Parole Board’s actions
establish that Heck v. Humphrey bars this suit.”11 According to Defendants, “[i]n light of plaintiff’s
guilty plea to the most recent charges that he violated the terms of his parole and acceptance of the
4

5

512 U.S. 477 (1994).
Rec. Doc. 14-1 at p. 4.

6

Rec. Doc. 37.

7

Rec. Doc. 40.

8

Id. at pp. 1–2; see also Rec. Doc. 40-1, “Notice of Preliminary Hearing” at p. 2.”

9

Rec. Doc. 40 at p. 2; see also Rec. Doc. 40-2 “Waiver of Final Parole Revocation Hearing,” at p. 1.

10

Rec. Doc. 40 at p. 2; see also Rec. Doc. 40-3, Letter from Sheryl M. Ranatza, Parole Board Chairman, to
Ernest Billizone, dated July 2, 2014.
11

Rec. Doc. 40 at p. 3.

2

new condition imposed upon him by the Parole Board, it is clear that all of plaintiff’s claims are
barred. His exclusive remedy is habeas to get the relief he seeks as a purported § 1983 claim for
injunctive relief.”12 Defendants aver that “[s]ince plaintiff’s status as a parolee has been confirmed
by the Parole Board (and by plaintiff himself) and in light of the cases discussed herein and in
defendants’ original motion, this case should be dismissed rather than stayed.”13
In Heck v. Humphrey, the Supreme Court held that a plaintiff who has been convicted of a
crime cannot recover damages for an alleged violation of his constitutional rights if the alleged
violation arose from the same facts attendant to the charge for which he was convicted, unless he
proves “that his conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas corpus.”14 In their “Motion to Stay Case
Pursuant to Heck v. Humphrey,”15 Defendants argued that the Court would not be able to determine
whether Heck v. Humphrey applies to the above-captioned matter until the parole revocation
proceedings were completed. Now that the proceedings have been completed, Defendants argue that
Heck v. Humphrey applies and bars Plaintiff’s claim. Thus, Defendants request dismissal.
Defendants’ request for dismissal is a new request for relief that goes beyond the scope of
their original motion to stay. It is not appropriate for Defendants’ to urge this request in a

12

Id. at p. 4.

13

Id. (emphasis in original).

14

15

Rec. Doc. 14.

3

supplemental memorandum. Rather, Defendants must file a new motion to which Plaintiff will have
an opportunity to respond.
Considering that Plaintiff’s parole revocation proceedings have concluded,
IT IS HEREBY ORDERED that Defendants’ “Motion to Stay Case Pursuant to Heck v.
Humphrey”16 is DENIED AS MOOT.
NEW ORLEANS, LOUISIANA, this ____ day of July, 2014

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

16

Rec. Doc. 14.

4