Burgess v. Livingston et al
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
February 17, 2017
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
LEE G. BURGESS, TDCJ #468244,
BRAD LIVINGSTON, et al.,
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-3740
MEMORANDUM OPINION AND ORDER
Correctional Institutions Division ("TDCJ").
Burgess has filed a
required to scrutinize the claims and dismiss the Complaint in
whole or in part if it determines that the Complaint "is frivolous,
to state a claim upon which relief may be
granted" or "seeks monetary relief from a defendant who is immune
from such relief."
After reviewing all of
the pleadings, the court concludes that this case must be dismissed
for the reasons explained below.
Burgess is currently serving a 35-year prison sentence as the
result of two convictions for aggravated robbery with a deadly
November 23, 1987. 1
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
Burgess alleges that he was entitled to early release
former TDCJ Director William Stephens, and two "John
release and continued to detain him in prison for an additional ten
months until August 24, 2015. 5
Burgess, who has since returned to
seeks declaratory relief and damages for ten months of
0ffender Information Detail, Texas Department of Criminal Justice,
February 10, 2017).
Complaint, Docket Entry No. 1, p. 4.
Id. at 3.
The court concludes,
that the Complaint
must be dismissed for reasons discussed below.
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
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
Heck v. Humphrey, 114 S. Ct. 2364, 2372
A claim for damages that bears a relationship to a conviction or
sentence that has not been so invalidated is not cognizable under
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
Id. at 4-5.
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
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
if success in that action would necessarily
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.
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)
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,
(5th Cir. 2010)
376 F. App'x
(holding that Heck precludes a suit for
determination regarding his eligibility for mandatory supervision
has been invalidated) .
For this reason,
Burgess's civil rights
claims are not cognizable under 42
must be dismissed with prejudice.
1983, and his Complaint
See Johnson v. McElveen,
(explaining that claims barred by
Heck are "dismissed with prejudice to their being asserted again
until the Heck conditions are met").
Based on the foregoing,
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.
The Clerk is directed to provide a copy of this Memorandum
Opinion and Order to the plaintiff.
the TDCJ -
The Clerk will also provide a
Office of the General Counsel,
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
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