Burgess v. Livingston et al
Filing
6
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
February 17, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
LEE G. BURGESS, TDCJ #468244,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
BRAD LIVINGSTON, et al.,
Defendants.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3740
MEMORANDUM OPINION AND ORDER
State
inmate
incarcerated
by
Lee
the
G.
Burgess
Texas
(TDCJ
Department
#468244)
of
Correctional Institutions Division ("TDCJ").
Prisoner
Civil
("Complaint")
determination
confinement.
Rights
(Docket
by
Complaint
Entry
parole
Because
No.
officials
Burgess
is
under
1)
is
Criminal
Justice
Burgess has filed a
42
u.s.c.
challenging
about
presently
the
§
an
adverse
duration
incarcerated,
the
1983
of
court
his
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 relief."
28 U.S.C.
§
1915A(b).
After reviewing all of
the pleadings, the court concludes that this case must be dismissed
for the reasons explained below.
I.
Background
Burgess is currently serving a 35-year prison sentence as the
result of two convictions for aggravated robbery with a deadly
weapon
that
were
November 23, 1987. 1
entered
against
him
in
Brazoria
County
on
Sometime after these convictions were entered,
Burgess was granted early release from prison on the form of parole
known as "mandatory supervision." 2
Burgess returned to prison on
December 11, 2003, after he violated the terms of his supervised
release. 3
Burgess
Livingston,
and/or
former
TDCJ
Executive
Director
Brad
Doe"
defendants
employed
by
TDCJ
in
the
"time
Burgess alleges that he was entitled to early release
mandatory
defendants"
sues
former TDCJ Director William Stephens, and two "John
Jane
section." 4
on
now
supervision
incorrectly
in
October
determined
of
his
2014,
but
eligibility
that
for
"the
early
release and continued to detain him in prison for an additional ten
months until August 24, 2015. 5
prison,
Burgess, who has since returned to
seeks declaratory relief and damages for ten months of
1
0ffender Information Detail, Texas Department of Criminal Justice,
available
at
http://offender.tdcj.texas.gov
(last
visited
February 10, 2017).
2
Complaint, Docket Entry No. 1, p. 4.
3
Id.
4
Id. at 3.
-2-
"false
imprisonment"
Constitution. 6
in
violation
The court concludes,
of
the
however,
United
States
that the Complaint
must be dismissed for reasons discussed below.
II.
Burgess
calls
into
Discussion
question
the
correctness
of
the
determination of his eligibility for early release on mandatory
supervision in October of 2014.
It is well established that a
civil rights plaintiff may not recover damages based on allegations
of "unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence
invalid,"
conviction
or
without
sentence
has
first
been
proving
that
"reversed
on
the
challenged
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
U.S.C.
§
2254."
[under]
Heck v. Humphrey, 114 S. Ct. 2364, 2372
28
(1994).
A claim for damages that bears a relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
42 U.S.C.
§
1983.
Id.
Claims for declaratory or injunctive relief are similarly not
cognizable in a
§
1983 action until the relevant conviction or
sentence has been reversed, expunged, or otherwise declared invalid
6
Id. at 4-5.
-3-
if a favorable judgment would "'necessarily imply'" the invalidity
of the prisoner's confinement.
189 (5th Cir. 1998).
Clarke v. Stalder, 154 F.3d 186,
In other words,
"a state prisoner's
§
1983
action is barred (absent prior invalidation) - no matter the relief
sought (damages or equitable relief), no matter the target of the
prisoner's suit (state conduct leading to conviction or internal
prison proceedings) demonstrate
Wilkinson v.
the
if success in that action would necessarily
invalidity
Dotson,
125 S.
of
confinement
Ct.
1242,
1248
or
its
(2005)
duration."
(emphasis in
original) .
Burgess does not allege or show that he ever challenged the
determination of his eligibility for supervised release or the
calculation of his sentence in a state or federal habeas corpus
proceeding, and there is no record of him having done so.
Because
Burgess does not demonstrate that the determination regarding his
eligibility for early release was ever invalidated,
Heck bars his Complaint.
See McGrew v.
Paroles, 47 F.3d 158, 160 (5th Cir. 1995)
Texas Bd.
the rule in
of Pardons &
(explaining that Heck is
implicated by parole proceedings that call into question the fact
and duration of confinement); Mendenhall v. Valdez,
372, 373
damages
(5th Cir. 2010)
under
§
1983
376 F. App'x
(holding that Heck precludes a suit for
unless
a
prisoner
can
show
that
the
determination regarding his eligibility for mandatory supervision
has been invalidated) .
For this reason,
-4-
Burgess's civil rights
claims are not cognizable under 42
u.s.c.
must be dismissed with prejudice.
F.3d 423,
424
(5th Cir.
1996)
§
1983, and his Complaint
See Johnson v. McElveen,
101
(explaining that claims barred by
Heck are "dismissed with prejudice to their being asserted again
until the Heck conditions are met").
III.
Based on the foregoing,
Conclusion
the court ORDERS that the Complaint
filed by Lee G. Burgess (TDCJ #468244) is DISMISSED with prejudice
as legally frivolous. The dismissal will count as a "strike" for
purposes of 28 U.S.C.
§
1915(g).
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
copy
(1}
by
regular
the TDCJ -
mail,
facsimile
The Clerk will also provide a
transmission,
Office of the General Counsel,
or
P.O.
e-mail
to:
Box 13084,
Austin, Texas 78711, Fax Number 512-936-2159; and (2} the Manager
of the Three-Strikes List for the Southern District of Texas.
SIGNED at Houston, Texas, on this 17th day of February, 2017.
UNITED STATES DISTRICT JUDGE
-5-
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