Frosch v. Shipman et al
Filing
7
MEMORANDUM OPINION AND ORDER OF DISMISSAL - Ordered that the Civil Rights Complaint filed by pltf is dismissed with prejudice to being asserted again until the HECK Conditions are met. (Ordered by Judge Mary Lou Robinson on 11/5/2012) (plh)
IN THE I.JNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
AMARILLO DIVISION
SE,
GEORGE EDWARD FROSCH, PRO
also known as GEORGE EDWARD FORSCH,
TDCJ-CID No. 1648694,
Previous TDCJ-CID No. 817530,
Previous TDCJ-CID No. 1232205,
TDCJ-CID No. 1505559.
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Plaintiff,
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V.
2:12-Cv-0224
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CHARLES SHIPMAN, Parole
Commissioner; MARSHA MOBERLY,
Parole Board member; and JOHN LaFAVORS,
Board member,
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Defendants.
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MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff GEORGE EDWARD FROSCH, acting pro se, has filed suit pursuant toTitle 42,
United States Code, section 1983 complaining against the above-named defendants and has been
granted permission to proceed pursuant to Title 28, United States Code, section 1915.
Plaintiff claims the defendants have deprived him of liberty on an invalid conviction or
sentence. Plaintiff alleges that, on October II,2012, the defendants voted to deny plaintiff
parole on an invalid sentence after he notified them the sentence was invalid. Plaintiff argues he
was convicted of theft under $1500.00, which was enhanced to a third degree felony with a four
year sentence. Plaintiff contends that sentence is illegal.
After reviewing plaintiff s complaint and the relief requested therein, the Court issued
a
show cause order requiring plaintiff to respond and state whether he wished to pursue his claims
through a habeas action or a civil rights action. Plaintiff responded on November 1,2012, stating
he wishes to maintain the present
civil rights action.
By his Complaint, plaintiff requests that his sentence be found to be invalid and he be
released for time served. By his show cause response,
plaintiff adds that he also
seeks punitive
damages from the defendants for each day he had to serve in excess of a two year sentence.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or offrcer or employee of a
governmental entity, the Court must evaluate the complaint and dismiss it without service
process,
a
AIi v.
Higgs , 892
F
of
.2d 438, 440 (5th Cir. 1 990), if it is frivolousr , malicious, fails to state
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.2d480, 483 n.4 (5th Cir. 1991)2.
The District Judge has reviewed the facts alleged by plaintiff to determine if his claim
presents grounds for dismissal or should proceed to answer by defendants.
ifit lacks an arguable basis in law or in fact, Booker v. Koonce,2 F.3d I 14, I
v. Hernandez,504 U.S. 25, ll2 S.Ct. 1728, 1733, ll8 L.Ed.2d 340 (1992).
A claim is frivolous
l5
(5th Cir. 1993); see, Denton
Cf, Greent. McKaskle,788 F.2d I I 16, 1 120 (5th Cir. 1986) ("Ofcourse, our discussion of Spears should not be interpreted to
mean that all or even most prisoner claims require or deserve aSpears 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 LAW AND ANALYSIS
To the extent plaintiff is requesting release for time served, that claim is foreclosed by
Preiser v. Rodriguez,4lI U.S. 475, 93 S.Ct. 1827,36 L.Ed.2d 439 (1973), and plaintiff must
seek such relief through habeas. Wolff v.
McDonnell,4IS U.S. 538, 94 S.Ct. 2963,41L.Ed.2d
e3s (re73).
As to plaintiff s other claim for monetary relief, that claim is barred by Heck
v.
Humphrey, 512 U.S. 477,114 S.Ct. 2364,2372,129 L.Ed.2d 383 (1994), because a grant of any
such relief would imply the invalidity of
plaintiff
s present
and/or future incarceration, falling
within the exclusive domain of habeas. Wilkinson v. Dotson,544 U.S. 74, 80-81, 125 S.Ct.
1242,1247, 161 L.Ed.2d253 (2005). Thus, plaintiff s claims lacks an arguable basis in law and
are
frivolous until the Heck conditions have been met.
CONCLUSION
Pursuant to Title 28, United States Code, section 1915A and section 1915(e)(2), as well
as
Title 42,United States Code, section 1997e(c)(l),
IT IS HEREBY ORDERED that the Civil Rights Complaint hled pursuant to Title 42,
United States Code, section 1983, by plaintiff GEORGE EDWARD FROSCH is DISMISSED
WITH PREJUDICE TO BEING ASSERTED AGAIN LINTIL THE HECK CONDITIONS ARE
MET3.
.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first
class
mail. The Clerk shall
sJohnsonv. McElveen,
l0l
also mail copies of this Order of Dismissal to TDCJ-Office of the
F.3d 423,424 (5th Cir. 1996).
General Counsel, P.O. Box 13084, Austin,
TX
78711; and to the Pro Se Clerk at the U.S.
District Court for the Eastern District of Texas. Tvler Division.
It is SO ORDERED.
Signed this the
\t-4
day of November, 2012.
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