Heslep v. Thaler et al
Filing
7
MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
October 27, 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
MATTHEW MARK HESLEP,
TDCJ #1582892,
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
RICK THALER, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-15-2595
MEMORANDUM OPINION AND ORDER
The plaintiff, Matthew Mark Heslep (TDCJ #1582892), has filed
a
complaint
violations
under
of his
42
civil
U.S.C.
rights
1983
§
(Docket
("Complaint"),
Entry No.
alleging
Because
1) .
plaintiff is incarcerated, the court is required to scrutinize the
claims
and dismiss
the
Complaint,
in whole
or
in part,
if
it
determines that the Complaint "is frivolous, malicious, or fails to
state a claim upon which relief may be granted" or "seeks monetary
relief from a defendant who is immune from such ,i:-elief."
§
1915A (b) .
concludes
After considering all of the pleadings,
that
this
case
must
be
dismissed
for
28 U.S.C.
the court
the
reasons
explained below.
I .
Background
Heslep is currently incarcerated by the Texas Department of
Criminal Justice -
Correctional Institutions
Division
( "TDCJ") .
The defendants are former TDCJ Director Rick Thaler and current
TDCJ Director William Stephens. 1
Heslep also sues former State
Attorney General and current Governor Greg Abbott and the Texas
Court of Criminal Appeals. 2
Heslep's Complaint concerns the direct appeal from his state
court
conviction.
Heslep
discloses
that
his
conviction
was
affirmed on June 2, 2011, and that he was notified of that decision
on June 8, 2011. 3
Shortly thereafter, on June 14, 2011, the Wynne
Unit Classification Committee placed Heslep on "Transit Status"
pending his transfer to another unit. 4
Status until August 14, 2011. 5
Heslep remained on Transit
While on Transit Status, Heslep had
limited access to the law library and was subject to a "Book Mobile
System"
that
Wednesday,
books,
was
available
and Friday) . 6
only
three
days
a
week
(Monday,
Because he had limited access
to law
Heslep claims that he was unable to file a petition for
discretionary
review
( "PDR")
with
the
Texas
1
Complaint, Docket Entry No. 1, at 3.
2
Id.
3
Id. at 4.
4
Id.
5
Id.
6
Id.
-2-
Court
of
Criminal
Appeals before the deadline expired on July 2, 2011. 7
On
June
29,
2012,
Heslep
filed
a
state
habeas
corpus
application requesting an out-of-time PDR, but the Texas Court of
Criminal Appeals denied that request without a written order. 8
See
Ex parte Heslep, Writ No. 77,915-01 available at the Texas Court of
Criminal
Appeals
Website,
visited Oct. 27, 2015).
http://www.search.txcourts.gov
(last
Heslep filed a federal petition for a writ
of habeas corpus under 28 U.S.C.
2254,
§
but that petition was
denied and dismissed with prejudice on March 31, 2015.
9
See Heslep
v. Thaler, Civil No. W-12-206 (W.O. Tex.).
Heslep
now
asks
this
court
to
order
the
Texas
Criminal Appeals to grant him an out-of-time PDR. 10
requests
compensatory damages
for
"labor,
Court
of
Heslep also
expenses,
and mental
anguish." 11
II.
Discussion
Heslep's pro se pleadings are entitled to "less
standards than formal pleadings drafted by lawyers."
Kerner,
92 S.
Ct.
594,
596
(1972).
stringent
Haines v.
Liberally construed,
Heslep
contends that he was denied his constitutional right to access the
7
Id.
8
Id.
9
Id.
lOid •
11
Id.
-3-
courts because of a limitation on law library access while he was
in Transit Status at the Wynne Unit in 2011.
Civil
rights
claims
brought
under
42
U.S.C.
1983
§
are
governed by the two-year statute of limitations provided by Texas
law.
See Piotrowski v.
Cir.
2001);
means
Tex.
that
Civ.
Prac.
& Rem.
allegations.
a
237 F.3d 567,
Code Ann.
the plaintiff had two years
claims accrued to file
1998)
City of Houston,
civil rights
§
576
(5th
16.003(a).
This
from the time that his
complaint concerning his
See Gonzalez v. Wyatt, 157 F.3d 1016, 1020 (5th Cir.
(noting that a cause of action accrues, so that the two-year
statute of limitations begins to run, when the plaintiff knows or
has reason to know of the injury which is the basis of the action).
Heslep's claim arose no later than July 2, 2011, when his time
to file a PDR with the Texas Court of Criminal Appeals expired.
The complaint in this case is dated August 23, 2015, 12 which is well
outside the limitations period.
Claims brought that are plainly
barred by the applicable statute of limitations are
dismissal as legally frivolous.
subject to
See Gartell v. Gaylor,
981 F.2d
254, 256 (5th Cir. 1993).
Because Heslep clearly waited more than
two
his
years
from the
time
claims
accrued
to
file
suit,
his
complaint is untimely and will be dismissed as legally frivolous.
12
13
Complaint, Docket Entry No. 1, at 5.
13
Al ternati vely, the court notes that Heslep's request for
leave to file an out-of-time PDR was denied by the Texas Court of
(continued ... )
-4-
III.
Conclusion and Order
Based on the foregoing,
(Docket
Entry
No.
1)
is
the court ORDERS that the Complaint
DISMISSED
with
prejudice
as
legally
frivolous.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the parties.
The Clerk will also provide a
copy by regular mail, facsimile transmission, or e-mail to: (1) the
TDCJ -
Office of the General Counsel,
P.O.
Box 13084,
Austin,
Texas, 18111, Fax Number (512) 936-2159; and (2) the District Clerk
for
the
Ferguson,
Eastern
Tyler,
District
Texas,
of
Texas,
Tyler
Division,
211
West
15102, Attention: Manager of the Three-
Strikes List.
SIGNED at Houston, Texas, on
f
Oc...jo~er , 2015.
SIM LAKE
UNITED STATES DISTRICT JUDGE
13
( • • • continued)
Criminal Appeals on state habeas review.
See Complaint, Docket
Entry No. 1, at 4; see also Ex parte Heslep, Writ No. 77,915-01
available at the Texas Court of Criminal Appeals Website,
http://www.search.txcourts.gov
(last visited Oct.
27,
2015).
Heslep does not allege facts showing that he was denied the right
to present a non-frivolous claim in state court.
Under these
circumstances, Heslep fails to articulate an actual injury and he
does not state a claim for denial of access to courts.
See Lewis
v. Casey, 116 S. Ct. 2174, 2182 (1996); Johnson v. Rodriguez, 110
F.3d 299, 310-311 (5th Cir. 1997).
-5-
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