Herrera v. Johnson et al

Filing 8

MEMORANDUM ORDER ADOPTING REPORT AND RECOMMENDATIONS. Plaintiff's objections are overruled and the Report of the Magistrate Judge 4 is ADOPTED as the opinion of the District Court. The above-styled civil action is DISMISSED WITH PREJUDICE as f rivolous and for failure to state a claim upon which relief may be granted. The Clerk shall send a copy of this opinion to the Administrator of the Three Strikes List for the Eastern District of Texas. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Michael H. Schneider on 05/18/15. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
RICHARD HERRERA #712197

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v.

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JUDITH JOHNSON, ET AL.

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CIVIL ACTION NO. 6:15cv142

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Plaintiff Richard Herrera, proceeding pro se, filed this civil rights lawsuit under 42
U.S.C. §1983 complaining of alleged violations of his constitutional rights. This Court ordered that
the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3)
and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United
States Magistrate Judges.
Herrera complained that the Board of Pardons and Paroles is holding him illegally because
he was not given due process before his parole was revoked. He says that he received a letter dated
December 22, 2009, saying “it appears reinstatement paperwork was in error, you were revoked with
a hearing.” He requested “restitution for time lost and for cruel and unusual punishment by holding
me hostage, plus parole complete plus punitive damages.”
After review of the pleadings, the magistrate judge issued a report recommending that the
lawsuit be dismissed. The magistrate judge observed that in a complaint about the validity of
confinement stemming from the revocation of parole, the plaintiff must show that the Board’s
decision has been reversed, expunged, set aside, or called into question, which Herrera had not done.
Littles v. Board of Pardons and Paroles Division, 68 F.3d 122, 123 (5th Cir. 1995), citing Heck v.
Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372 (1994). To the extent that Herrera asked for
release on parole, the magistrate judge concluded that such relief could not be obtained through a
civil rights action, but had to be sought through habeas corpus.
1

Herrera’s objections to the report assert that his parole was revoked without a hearing, which
he says is cruel and unusual punishment. He states that he is not asking for parole, but only
restitution for the cruel and unusual punishment inflicted upon him. Herrera did not object to the
magistrate judge’s conclusion that his claim for monetary damages is barred because he has not
shown that the parole decision about which he complains has not been expunged or set aside.
The Court has conducted a careful de novo review of those portions of the magistrate judge’s
proposed findings and recommendations to which the Plaintiff objected. See 28 U.S.C. §636(b)(1)
(district judge shall “make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made.”) Upon such de novo review,
the Court has determined that the report of the magistrate judge is correct and the Plaintiff’s
objections are without merit.
ORDERED that the Plaintiff’s objections are overruled and the Report of the Magistrate
Judge (docket no. 4) is ADOPTED as the opinion of the District Court. It is further
ORDERED that the that the above-styled civil action be and hereby is DISMISSED WITH
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PREJUDICE as frivolous and for failure to state a claim upon which relief may be granted. It is
further
ORDERED that the Clerk shall send a copy of this opinion to the Administrator of the Three
Strikes List for the Eastern District of Texas. Finally, it is
ORDERED that any and all motions which may be pending in this action are hereby
DENIED.
It is SO ORDERED.
SIGNED this 18th day of May, 2015.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE