McGowen v. Livingston et al

Filing 4

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Joseph Kent McGowen. RECOMMENDS that Plaintiff's complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e). FURTHER RECOMMENDS 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 sanctions. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOSEPH KENT McGOWEN
#1090641

§
§
§
V.
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RISSIE OWENS, TIMOTHY
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McDONNELL, ELVIS HIGHTOWER,
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TX BPP COMMISSIONER TRENTON
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MARSHALL, TX BPP COMMISSIONER §
DAVID GUTIERREZ, TX BPP BOARD
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MEMBER ROMULO CHAVEZ,
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BPP COMMISSIONER ROY GARCIA
§
JAMES GILLESPIE, BPP PAROLE
§
OFFICER DAVIDRICE and UNKNOWN §
TDCJ, OIG AND BPP DEFENDANTS A-Z §

A-14-CA-1088-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. Before the Court is Plaintiff Joseph Kent McGowen’s complaint.
McGowen, proceeding pro se, has paid the full filing fee for this case.
STATEMENT OF THE CASE
At the time he filed his complaint pursuant to 42 U.S.C. § 1983, McGowen was confined in
the Pack Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
McGowen was convicted of murder and was sentenced to 20 years in prison. McGowen, a Harris
County Deputy Sheriff, shot and killed a woman in her home while he was executing a warrant for

her arrest on August 25, 1992. McGowen v. State, No. 01-02-00416-CR (Tex. App. – Houston [1st
Dist.] 2003, pet. ref’d). McGowen insists he is innocent.
McGowen’s complaint and its attachments are nearly 500 pages and chronicle McGowen’s
stay in various units of the Texas Department of Criminal Justice - Correctional Institutions Division
from approximately 2007 to present and includes a history of his parole reviews. McGowen names
51 defendants located throughout the state of Texas. After consideration of the complaint, the Court
determined McGowen improperly joined defendants in his single complaint. Accordingly, the Court
severed McGowen’s claims into four lawsuits. The claims remaining in this lawsuit relate to his
parole reviews and are brought against Defendants Rissie Owens, Timothy McDonnell, Elvis
Hightower, Trenton Marshall, David Gutierrez, Romulo Chavez, Roy Garcia, James Gillespie, David
Rice, and Unknown TDCJ, OIG, and BPP Defendants A-Z. McGowen seeks a declaratory
judgment, a preliminary and permanent injunction, compensatory damages, and punitive damages.
McGowen alleges Rissie Owens, Chairperson of the Texas Board of Pardons and Paroles,
is responsible for all actions, crimes, abuses, and civil rights violations committed by her
subordinates, because she is in direct command and control of them. According to McGowen, he
and his father notified Owens of illegal actions taken by James Gillespie, Romulo Chavez, Roy
Garcia, Elvis Hightower, Trenton Marshall, David Gutierrez, and Timothy McDonnell. Despite this
notice, McGowen complains Owens failed to act. McGowen also alleges Owens allowed David Rice
to interfere with McGowen’s parole process. McGowen accuses Owens of denying him due process
and equal protection of the laws, which led to McGowen being denied parole.
With regard to Timothy McDonnell McGowen alleges he was the acting Board Administrator
of the Board of Pardons and Paroles and was legally responsible for enforcing and obeying all
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applicable laws, codes, rules, regulations, policies, procedures, and directives pertaining to the Board
of Pardons and Paroles and the parole process of all TDCJ inmates. Similar to his claims against
Owens, McGowen also holds McDonnell responsible for the actions of his subordinates. McGowen
also complains McDonnell forwarded McGowen’s request for “Special Review” to Romulo Chavez
rather than sending it to another region.
McGowen claims Elvis Hightower, Board Member of the Board of Pardons and Paroles in
the Gatesville Division, is also responsible for his subordinates. According to Plaintiff, Hightower
was the lead voter in McGowen’s 2011 parole process. Hightower allegedly imposed a three-year
set-off when he voted to deny McGowen parole. McGowen argues he could not lawfully be set-off
for more than two years. McGowen exclaims he and his family were “tipped off” by someone with
personal and intimate connections within the Board of Pardons and Paroles that McGowen had
received an illegal three-year set-off. McGowen claims his three-year set-off was subsequently
reduced to two years. McGowen asserts that Trenton Marshall, Board of Pardons and Paroles
Commissioner in the Gatesville Division, was the second voter in Plaintiff’s 2011 parole process.
McGowen alleges Marshall and Hightower conspired to impose an illegal three-year set-off.
McGowen also asserts that David Gutierrez, another Board of Pardons and Paroles Commissioner
in the Gatesville Division, was the third voter in Plaintiff’s 2011 parole process, and sues Gutierrez
for illegally imposed a three-year set-off.
McGowen also names as a defendant Romulo Chavez, a Board of Pardons and Paroles
Commissioner later promoted to a Board Member. McGowen claims Chavez voted to deny
McGowen parole on February 7, 2014. McGowen contends Chavez, a former Houston Police

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Officer, has far too much personal interest in McGowen’s criminal case to effectively and reliably
serve as a parole voter in McGowen’s case.
With regard to Roy Garcia, Board of Pardons and Paroles Commissioner for the Huntsville
Division, McGowen asserts Garcia was the lead voter in McGowen’s 2014 parole review.
McGowen suggests Garcia unjustly, undeservedly, unlawfully, maliciously, and vindictively denied
McGowen parole. McGowen contends Garcia is part of a conspiracy to deny McGowen parole.
McGowen also sues James Gillespie, Institutional Parole Officer for the Pack Unit.
McGowen claims he gave Gillespie three “decision-swaying documents” to place in McGowen’s
parole file but Gillespie failed to do so. McGowen also alleges Gillespie lied to McGowen when
McGowen asked him about David Rice. McGowen contends Gillespie is part of the conspiracy to
deny him parole.
With regard to McGowen’s claims against David Rice, Board of Pardons and Paroles Parole
Officer for Region III, McGowen asserts Rice has illegally influenced and interfered with
McGowen’s parole process. McGowen explains Rice was a defendant in McGowen’s previously
filed civil rights complaint in the Houston Division of the Southern District of Texas in Cause No.
H-09-3870. McGowen believes the interference with his parole process has been done in retaliation
for the previously filed civil rights lawsuit.
DISCUSSION AND ANALYSIS
A.

Review Pursuant to 28 U.S.C. § 1915A

Although Plaintiff paid the full filing fee for this case, his claims must be screened pursuant
to 28 U.S.C. § 1915A. On review, the Court must dismiss the complaint, or any portion of the
complaint, if the complaint is frivolous, malicious, or fails to state a claim upon which relief may
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be granted or seeks monetary relief from a defendant who is immune from such relief. See Martin
v. Scott, 156 F.3d 578 (5th Cir. 1998). When reviewing a plaintiff’s complaint, the court must
construe the allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However,
the plaintiff’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.

2011 Parole Review

McGowen’s claims regarding his 2011 parole review are time-barred. There is no federal
statute of limitations for § 1983 actions. Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th
Cir. 1995); Henson-El v. Rogers, 923 F.2d 51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235
(1991). Therefore, the Supreme Court has directed federal courts to borrow the forum state’s general
personal injury limitations period. Owens v. Okure, 488 U.S. 235, 249-50 (1989). In Texas, the
applicable limitations period is two years. Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)
(citing TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (Vernon 1986)). Nevertheless, federal law
determines when a § 1983 cause of action accrues. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir .
1993). A cause of action under § 1983 accrues when the aggrieved party knows, or has reason to
know of, the injury or damages which form the basis of the action. Piotrowski, 51 F.3d at 516.
In McGowen’s Exhibit B-4, he acknowledges he learned of the allegedly illegal three-year
set-off on August 26, 2011. However, McGowen did not file his civil rights complaint until
December 10, 2014, when it was hand-delivered to the Clerk’s Office. Accordingly, McGowen’s
complaint regarding his 2011 parole review was filed more than a year after the limitations period
expired. Therefore, McGowen’s claims regarding his 2011 parole review are time-barred.
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C.

2014 Parole Review
1.

Eleventh Amendment Immunity

To the extent McGowen sues the defendants in their official capacities for monetary
damages, 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 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 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).
2.

Absolute Immunity

The defendants who voted on McGowen’s parole in 2014 are also protected by absolute
immunity. See Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995).
Parole officers are entitled to absolute immunity from liability for their conduct in parole decisions
and in the exercise of their decision-making powers. Id. Accordingly, Defendants Chavez and
Garcia are protected by absolute immunity.
3.

Supervisory Liability

The allegations against Rissie Owens are based on theories of respondeat superior and/or
supervisory liability. Neither theory is sufficient to support a claim under § 1983. Rather,
“[p]ersonal involvement is an essential element of a civil rights cause of action.” Thompson v.
Steele, 709 F.2d 381, 382 (5th Cir. 1983) (citation omitted). Supervisors must either actively
participate in the acts complained of or implement unconstitutional policies that result in injury.
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Mouille v. City of Live Oak, Tex., 977 F.2d 924, 929 (5th Cir. 1992). Similar to the claims against
Owens, McGowen seeks to also hold McDonnell responsible for the actions of his subordinates. As
explained above, this is insufficient to support a claim under § 1983.
4.

Due Process

McGowen also alleges McDonnell forwarded McGowen’s special review request to Chavez,
who refused it. In addition, McGowen alleges McDonnell ignored McGowen’s subsequent requests
for special review. McGowen further alleges Gillespie had an animus against McGowen and failed
to include certain papers in McGowen’s parole file. McGowen also alleges Gillespie lied to him
about Rice’s position with the Parole Board. Relatedly, McGowen asserts Gillespie “strongly
suggested” Rice was the “person ‘within the system’ who is illegally making negative contacts which
are preventing” his release to parole. McGowen concludes these and other actions violated his rights
to due process.
To the extent McGowen contends the denial of parole violated his rights to due process his
claims fail. As explained by the Fifth Circuit, “[t]he protections of the Due Process Clause are only
invoked when State procedures which may produce erroneous or unreliable results imperil a
protected liberty or property interest.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert.
denied, 522 U.S. 995 (1997) (citations omitted). Because Texas prisoners have no constitutionally
protected liberty interest in parole, they cannot mount a challenge against any state parole review
procedure on procedural (or substantive) Due Process grounds. Id. (citations omitted). In Johnson,
the Fifth Circuit concluded Johnson’s allegations that the Texas Board of Pardons and Paroles
considers unreliable or even false information in making parole determinations, without more,
simply do not assert a federal constitutional violation. Id. “[I]n the absence of a cognizable liberty
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interest, a state prisoner cannot challenge parole procedures under the Due Process Clause.” Id. at
309 n.13. Because McGowen has no liberty interest in obtaining parole in Texas, he has no claim
for violation of due process in the procedures attendant to his parole decisions. Orellana v. Kyle, 65
F.3d 29, 31 (5th Cir. 1995).
5.

Equal Protection

McGowen contends the same actions described above with regard to his parole review violate
his right to equal protection. A violation of equal protection occurs only when the governmental
action in question “classif[ies] or distinguish[es] between two or more relevant persons or groups[,]”
Brennan v. Stewart, 834 F.2d 1248, 1257 (5th Cir.1988), or when a classification impermissibly
interferes with a fundamental right. Hatten v. Rains, 854 F.2d 687, 690 (5th Cir.1988). A
“fundamental right,” for purposes of equal protection analysis, is one that is “among the rights and
liberties protected by the Constitution.” San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 29
(1973).
McGowen does not identify any similarly situated prisoners, nor does his allegations show
he was intentionally treated differently from other prisoners absent a rational basis. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000). Vague and conclusional allegations that a
prisoner’s equal protection rights have been violated are insufficient to raise an equal protection
claim. Pedraza v. Meyer, 919 F.2d 317, 318 n.1 (5th Cir. 1990).
6.

Retaliation

McGowen contends the denial of his parole is part of a conspiracy to retaliate against him
for the civil rights lawsuit he filed in the Houston Division of the Southern District of Texas in 2009
against various prisoner officials. On June 20, 2012, the District Judge in the Houston case granted
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summary judgment on several of McGowen’s claims and dismissed the rest pursuant to 28 U.S.C.
§ 1915A. McGowen filed an untimely notice of appeal, and his appeal was dismissed. McGowen
v. Livingston, No. 12-20533 (5th Cir. 2013).
“To state a valid claim for retaliation under section 1983, a prisoner must allege (1) a specific
constitutional right, (2) the defendant’s intent to retaliate against the prisoner for his or her exercise
of that right, (3) a retaliatory adverse act, and (4) causation.” Jones v. Greninger, 188 F.3d 322,
324–25 (5th Cir. 1999). “Mere conclusionary allegations of retaliation” are insufficient. Id. at 325.
A prisoner must either “produce direct evidence of motivation” or “allege a chronology of events
from which retaliation may plausibly be inferred.” Id. (quoting Woods v. Smith, 60 F.3d 1161, 1166
(5th Cir. 1995). The relevant showing must be more than the prisoner’s personal belief that he is the
victim of retaliation. Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir. 1997) (citing Woods v.
Edwards, 51 F.3d 577, 580 (5th Cir. 1995)).
McGowen fails to allege facts sufficient to support a claim that he was denied parole in
retaliation for his 2009 civil rights lawsuit. Specifically, McGowen fails to plead anything other than
bare conclusory to demonstrate that the denial of parole was the result of an intent to retaliate against
him for his 2009 suit.
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice as
frivolous pursuant to 28 U.S.C. § 1915(e).
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
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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).
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

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- 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 3rd day of February, 2015.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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