Jordan v. Texas Dept of Criminal Justice et al
Filing
4
MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
December 02, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LARRY DONELL JORDAN,
TDCJ #419295,
§
§
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3438
MEMORANDUM OPINION AND ORDER
The
plaintiff,
Larry
Donell
Jordan
(TDCJ
#419295),
is
presently incarcerated in the Texas Department of Criminal Justice
(~TDCJ").
- Correctional Institutions Division
Prisoner
Civil
Rights
Complaint
under
Jordan has filed a
42
U.S. C.
§
1983
("Complaint")
(Docket Entry No. 1), challenging the revocation of
his
Because
court
is
required to scrutinize the claims and dismiss the Complaint,
in
parole.
whole
or
in
part,
plaintiff
if
it
is
incarcerated,
determines
that
the
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 relief."
28 U.S. C.
§
1915A (b) .
After considering
all of the pleadings the court concludes that this case should be
dismissed for the reasons explained below.
I.
Jordan
Beeville,
is
currently
Texas. 1
Background
confined
at
the
Garza
He sues TDCJ and Robin Abbott,
serves as an assistant general counsel
West
Unit
in
who allegedly
for the Texas Board of
Pardons and Paroles. 2
Jordan contends that his parole was revoked improperly on
May 23, 2016. 3
He appears to claim that Abbott wrongfully denied
his appeal from that proceeding, or that he was denied the right to
appeal,
in violation of his right to due process. 4
Arguing that
his parole should not have been revoked, Jordan requests injunctive
relief in the form of an order setting aside the revocation and reopening his parole hearing. 5
II.
Discussion
Jordan appears to take issue with a particular decision that
resulted in the revocation of his parole and his return to prison.
It is well established that the writ of habeas corpus provides the
exclusive remedy for prisoners challenging the "fact or duration"
of confinement.
Preiser v. Rodriguez, 93 S. Ct. 1827, 1841 (1973).
By contrast, an action under 42 U.S.C.
§
1
Complaint, Docket Entry No. 1, p. 3.
2
Id. at 3, 4.
3
Id. at 4.
4
Id.
5
Id.
-2-
1983 is the appropriate
legal vehicle to attack allegedly unconstitutional conditions of
confinement.
See
Cook
v.
Texas
Dep't
of
Criminal
Justice
Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994).
Because Jordan challenges the fact of his incarceration and
not the conditions of his confinement, his due process claims are
actionable, if at all, under the federal habeas corpus statutes, 28
U.S.C.
§
2254, and not 42 U.S.C.
1841.
Accordingly, the Complaint will be dismissed for failure to
state a claim under
§
§
1983.
See Preiser, 93 S. Ct. at
1983.
III.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
The Prisoner's Civil Rights Complaint filed by
1)
(Docket Entry No.
is
Larry Donell Jordan
DISMISSED for failure to state a claim under 42
u.s.c. § 1983. The dismissal is without prejudice
to re-filing his claims under 28 u.s.c. § 2254.
2.
Jordan's motion for leave to proceed in
pauperis (Docket Entry No. 2) is GRANTED.
forma
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
SIGNED at Houston, Texas, on this 2nd day of December, 2016.
UNITED STATES DISTRICT JUDGE
-3-
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