Garcia v. Board of Pardons and Paroles

Filing 11

REPORT AND RECOMMENDATIONS that the Court DISMISS 1 Complaint filed by Jesus Garcia, Jr. Signed by Judge Andrew W. Austin. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JESUS GARCIA JR. #1547814
V.
BOARD OF PARDONS AND PAROLES

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No. A-12-CV-804-LY

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
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.
Before the Court are Plaintiff’s “Amended Motion for Leave to File Tort Claim Act and
Motion for Leave to Proceed In Forma Pauperis without Prepayment of Fees” [#1], Plaintiff’s
“Amended Motion for Leave to File Reply Brief and Supplement Brief” [#5], and Plaintiff’s
“Amended Motion for Leave to File Out of Time Notice of Appeal in Fed. R. App. P. 3(c)(d)” [#8].
Plaintiff, proceeding pro se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his motions, Plaintiff was confined in the Clements Unit of the Texas
Department of Criminal Justice - Correctional Institutions Division. Because Plaintiff’s initial
motion was nonsensical and it appeared Plaintiff was being assisted by barred filer Edward Roy
Newsome #437698, the Court was hesitant to proceed in the case if the plaintiff was unaware of the
consequences of his filing. Accordingly, the Court warned Plaintiff, if the request to proceed in

forma pauperis was granted, the Court would issue a collection order and direct TDCJ-Inmate Trust
Fund Department to collect in installments the $350 fee. In addition, the Court warned Plaintiff, if
the case was later dismissed as frivolous, future frivolous lawsuits filed by Plaintiff may result in
various sanctions. Plaintiff was also warned 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). In addition, Plaintiff was warned, if he had more than three
actions or appeals dismissed as frivolous, malicious or for failure to state a claim on which relief may
be granted, then he would 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).
After issuing the warnings, the Court ordered Plaintiff to file an advisory, informing the
Court whether he wished to proceed. Rather than filing an advisory, Plaintiff filed an “Amended
Motion for Leave to File Reply Brief and Supplement Brief.” The motion was again prepared by
Offender Newsome, who, because of his abusive and harassing filings, has been barred from filing
claims in numerous courts.

2

After receiving the incomprehensible motion, this Court set a hearing to determine whether
the plaintiff understood the warnings previously given to him. The Court directed Plaintiff to be
prepared to address the issues described above and inform the Court whether he wished to proceed
with his lawsuit. Prior to the hearing, Plaintiff filed an “Amended Motion for Leave to File Out of
Time Notice of Appeal in Fed. R. App. P. 3(c)(d),” another undecipherable motion prepared by
Offender Newsome.
On October 16, 2012, the Court held a video hearing in the case along with eight related
cases.1 Plaintiff confirmed he is being assisted by Offender Newsome in this case. Plaintiff did not
appear to understand the motions filed in his case. However, he made clear he was challenging his
state conviction for which he was sentenced to life in prison. The Court explained Plaintiff’s
challenge was not properly filed in this Court. Plaintiff was given the opportunity to dismiss his case
without suffering any of the above-mentioned consequences. However, Plaintiff insisted on pursuing
his civil lawsuit.2
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

1

See Noble v. Board of Pardons and Paroles, No. A-12-CV-737-SS; Noble v. Rogers, No.
A-12-CV-738-SS; Noble v. Lollar, No. A-12-CV-739-SS; Noble v. Nation, No. A-12-CV-740-SS;
Noble v. Chavez, No. A-12-CV-805-SS; Trammel v. Board of Pardons and Paroles, No. A-12-CV786-LY; Saucedo v. Board of Pardons and Paroles, No. A-12-CV-792-LY; and Thomas v. Board
of Pardons and Paroles, No. A-12-CV-811-SS.
2

The plaintiffs in the other eight cases moved to voluntarily dismiss their cases, so they could
pursue applications for habeas corpus relief in courts with proper venue.
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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 only named defendant in this case is the Board of Pardons and Paroles. The Board 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).
Accordingly, Plaintiff’s case should be dismissed without prejudice for want of jurisdiction.
C.

Heck v. Humphrey

Alternatively, Plaintiff’s claims are 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:
4

[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 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 habeas corpus relief, venue is not proper in this Court. Plaintiff
was convicted in Taylor County and is currently incarcerated in the Clements Unit in Amarillo,
Texas. Venue over any habeas claims Plaintiff may be attempting to make would be proper in the
Northern District of Texas. 3
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice for
want of jurisdiction and any pending motions be dismissed.4 To the extent Plaintiff asserts claims

3

Venue is proper in a habeas corpus action in either the district court where the petitioner is
in custody or in the district within which the petitioner was convicted and sentenced. 28 U.S.C.
§ 2241(d).
4

The Court could have easily recommended this case be dismissed with prejudice as
frivolous, and Plaintiff would have been subjected to consequences for which he was previously
warned. However, Plaintiff appeared genuinely confused as to the nature of the motions prepared
by Newsome and had not filed the motions with the purpose of burdening the Court with frivolous
filings. Plaintiff will not be as fortunate in the future if he continues to file baseless motions
prepared by Newsome.
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for habeas corpus relief those claims should be dismissed without prejudice to Plaintiff filing an
application for habeas corpus relief in a court with proper venue.5
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 19th day of October, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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The Clerk’s Office is directed to forward to Plaintiff forms for filing an application for
habeas corpus relief pursuant to 28 U.S.C. § 2254.
6