Mandeville v. State of Texas et al

Filing 9

REPORT AND RECOMMENDATION re: 1 Complaint filed by Ronald D. Mandeville.RECOMMENDS that plaintiff's claims be dismissed without prejudice... FURTHER RECOMMENDS that the Corut include within its judgment a provision expressly and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in sanctions... Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
RONALD D. MANDEVILLE #833528
V.
STATE OF TEXAS, RICK PERRY,
OLIVER J. BELL, BRAD LIVINGSTON,
RICK THALER, RISSIE OWENS,
and STUART JENKINS

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A-13-CA-017-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 is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave
to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the
Stevenson Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Plaintiff sues the State of Texas, Governor Rick Perry, Chairman of the Board of Criminal Justice
Oliver J. Bell, Executive Director of TDCJ Brad Livingston, Director of TDCJ-CID Rick Thaler,
Chairperson of the Board of Pardons and Paroles Rissie Owens, and Director of TDCJ - Paroles
Division Stuart Jenkins. Plaintiff accuses the defendants of holding him in prison past his discharge

date. He contends his good time credits should be deducted from his sentence. He seeks his
immediate release and damages in the amount of $1,280,000.
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 (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

Being sued in their official capacities for monetary damages, the individually named
Defendants are 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 (1984).
The State of Texas is also immune from suit. 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 (1990). The Eleventh Amendment may not be evaded by suing state agencies or

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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

Insofar as Plaintiff is seeking monetary damages against Defendants in their individual
capacities for his alleged illegal confinement, Plaintiff’s claims must be dismissed pursuant to Heck
v. Humphrey, 512 U.S. 477, 486-87 (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:
[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. Accordingly, Plaintiff’s claims for
monetary damages regarding his alleged illegal confinement should be dismissed without prejudice
to refile once the conditions of Heck are met.
D.

Habeas Claims

To the extent Plaintiff seeks his immediate release, he must seek such relief in an application
for habeas corpus relief after he has exhausted his state court remedies. The Court should decline
to construe this action as a request for habeas corpus relief, because the Court would be without
jurisdiction to consider it. Plaintiff has already filed several applications for habeas corpus relief in

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the Dallas Division of the Northern District of Texas. In fact, Plaintiff raised there the same claims
he raises here. As explained by the Dallas court, Plaintiff must obtain an order from the Fifth Circuit
giving him authorization to file a successive habeas application before the court can consider his
claims. Mandeville v. Thaler, No. 3:11-CV-412-G (N.D. Tex.).
RECOMMENDATION
Plaintiff’s complaint is frivolous pursuant to 28 U.S.C. § 1915(e). It is therefore
recommended that Plaintiff’s claims for monetary damages against the State of Texas and the
defendants in their official capacities be dismissed without prejudice for want of jurisdiction,
Plaintiff’s claims for monetary damages against the defendants in their individual capacities be
dismissed without prejudice to refile once the conditions of Heck are met, and Plaintiff’s claims
seeking his immediate release be dismissed without prejudice for want of jurisdiction.
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
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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).
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
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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 26th day of March, 2013.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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