Douglas v. Gutierrez et al

Filing 5

REPORT AND RECOMMENDATIONS re 1 Complaint filed by Willis Dewayne Douglas. It is therefore recommended that Plaintiffs complaint be dismissed with prejudice for failureto state a claim pursuant to 28 U.S.C. § 1915(e). Signed by Judge Mark Lane. (os)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

WILLIS DEWAYNE DOUGLAS
V.
DAVID GUTIERREZ,
JAMES LAFEVERS, and
FEDERICO RANGEL

§
§
§
§
§
§
§

A-16-CA-462-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
Stiles Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Plaintiff complains he has been denied due process, because a rape charge has been put in his parole
file. However, Plaintiff denies he has been charged, indicted or convicted of rape. Plaintiff requests

the Court to issue an order prohibiting the defendants, parole board members, from “enforcing
rape/file.”
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.

Due Process

Plaintiff’s due process claim fails. 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 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
2

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 interest, a state prisoner cannot challenge parole procedures under the Due Process Clause.”
Id. at 309 n.13. Because Plaintiff 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).
RECOMMENDATION
It is therefore recommended that Plaintiff’s complaint be dismissed with prejudice for failure
to state a claim pursuant to 28 U.S.C. § 1915(e).
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 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
3

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 on April 12, 2016.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

4