Van Bush v. Texas Board of Pardons and Paroles

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Kyle Van Bush. (It is therefore recommended that Plaintiffs civil-rights claims be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e) and Plaintiffs habeas-corpus claims be dismissed without prejudice to refiling in an application for habeas corpus relief.) Signed by Judge Andrew W. Austin. (jk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
KYLE VAN BUSH #561568
(SAFP #1731759)
V.
TEXAS BOARD OF PARDONS
AND PAROLES

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A-11-CA-890-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
SAFP Glossbrenner Unit. Plaintiff complains his parole was wrongfully revoked in 2004, thereby
extending his prison sentence. Plaintiff sues the Texas Board of Pardons and Paroles. He seeks an
unspecified amount of monetary damages and requests his prison sentence be “adjusted back to
7/2009.”
DISCUSSION AND ANALYSIS
A.

Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)
if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief

may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal
for frivolousness or maliciousness may occur at any time, before or after service of process and
before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).
When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as
liberally as possible. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594 (1972). However, the
petitioner’s pro se status does not offer him “an impenetrable shield, for one acting pro se has no
license to harass others, clog the judicial machinery with meritless litigation and abuse already
overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
B.

Eleventh Amendment Immunity

The Texas Board of Pardons and Paroles is immune from suit under the Eleventh
Amendment because such an action is the same as a suit against the sovereign.

Pennhurst State

School Hosp. v. Halderman, 465 U.S. 89, 104 S. Ct. 900 (1984). The Eleventh Amendment
generally divests federal courts of jurisdiction to entertain suits directed against states. Port Auth.
Trans-Hudson v. Feeney, 495 U.S. 299, 304, 110 S. Ct. 1868, 1871 (1990). The Eleventh
Amendment may not be evaded by suing state agencies or state employees in their official capacity
because such an indirect pleading remains in essence a claim upon the state treasury. Green v. State
Bar of Texas, 27 F.3d 1083,1087 (5th Cir. 1994).
C.

Heck v. Humphrey

Plaintiff’s claims are also barred by Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S. Ct.
2364, 2372 (1994) and the Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in
Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994). In Heck, the Supreme Court held:

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[I]n order to recover damages for allegedly unconstitutional conviction or
imprisonment, or for other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on 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.
In this case Plaintiff does not allege that his conviction or revocation of parole has been reversed,
expunged, invalidated, or called into question by a federal court’s issuance of writ of habeas corpus.
Plaintiff’s recitation of the procedural history in this case indicates just the opposite.
D.

Habeas Claims

To the extent Plaintiff seeks to have his sentence “adjusted back to 7/2009,” he must seek
such relief in an application for habeas corpus relief after he has exhausted his state court remedies.
The exclusive remedy for a prisoner who challenges the fact or duration of his confinement and
seeks immediate or speedier release is habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475, 488490, 93 S. Ct. 1836-37 (1973). The Court should decline to construe this action as a request for
habeas corpus relief. If Plaintiff did not intend for this action to be an application for habeas corpus
relief pursuant to 28 U.S.C. § 2254, any subsequently filed applications could be subject to the
restrictions on “second or successive” motions. See e.g. Castro v. United States, 540 U.S. 375, 124
S. Ct. 786 (2003). Additionally, Plaintiff makes no allegations suggesting he has exhausted his state
court remedies.
RECOMMENDATION
It is therefore recommended that Plaintiff’s civil-rights claims be dismissed with prejudice
as frivolous pursuant to 28 U.S.C. § 1915(e) and Plaintiff’s habeas-corpus claims be dismissed
without prejudice to refiling in an application for habeas corpus relief.

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It is further recommended that the Court include within its judgment a provision expressly
and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in
(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant
monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff
from filing any lawsuits in this Court without first obtaining the permission from a District Judge
of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some
combination of these sanctions.
It is further recommended that Plaintiff should be warned that for causes of action which
accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order
of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate
while the inmate was in the custody of the Department or confined in county jail awaiting transfer
to the Department following conviction of a felony or revocation of community supervision, parole,
or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct
time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued
good conduct time, if the Department has previously received two final orders; or (3) 180 days of
an inmate’s accrued good conduct time, if the Department has previously received three or more
final orders. See, TEX . GOV ’T CODE ANN . § 498.0045 (Vernon 1998).
It is further recommended that Plaintiff be warned that if Plaintiff files more than three
actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then he will be prohibited from bringing any other
actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
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In the event this Report and Recommendation is accepted, adopted or approved, it is
recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the TDCJ
- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the
Eastern District of Texas.
OBJECTIONS
Within 14 days after receipt of the magistrate judge’s report, any party may serve and file
written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636
(b)(1)(C). Failure to file written objections to the proposed findings and recommendations contained
within this report within 14 days after service shall bar an aggrieved party from de novo review by
the district court of the proposed findings and recommendations and from appellate review of factual
findings accepted or adopted by the district court except on grounds of plain error or manifest
injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas
v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 14th day of October, 2011.

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ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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