Truelove v. Owens et al

Filing 19

REPORT AND RECOMMENDATIONS that Plaintiffs time-barred claims against Defendants Director of Temple Parole Office, Amy Carr, and Mr. Smith be dismissed with prejudice as frivolous; RECOMMENDATION that Plaintiffs claims for monetary damages against De fendants Owens, Doneley, Bon-Jorno, and Members of Council on Sex Offender Treatment, in their official capacities, be dismissed without prejudice for want of jurisdiction; RECOMMENDATION that Plaintiffs claims against Defendants Owens and Doneley in their individual capacities for monetary damages be dismissed with prejudice as frivolous; RECOMMENDATION that Plaintiffs claims against Defendants Owens, Doneley, Bon-Jorno, and the Members of Council on Sex Offender Treatment relating to sexoffend er treatment be dismissed with prejudice for failure to state a claim upon which relief can be granted pursuant; RECOMMENDATION that Plaintiffs claims against Defendants Owens, Doneley, Bon-Jorno, and the Members of Council on Sex Offender Treatment relating to sex-offender registration be dismissed without prejudice to refile once the conditions of Heck are met; RECOMMENDATION that Plaintiff be warned that if Plaintiff files more than threeactions or appeals while he is a prisoner which are dis missed 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. Signed by Judge Mark Lane. (klw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
FARON R. TRUELOVE
(Bell Co. No. 2016-00003101)
TDCJ #790252
V.
RISSIE OWENS, DIRECTOR OF
TEMPLE PAROLE DIVISION,
AMY CARR, CHARLES DONELEY,
MR. SMITH, J. BON-JORNO, and
UNKNOWN MEMBERS ON THE
COUNCIL ON SEX OFFENDER
TREATMENT

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A-16-CA-1233-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.
Before the Court is Plaintiff’s amended 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
Bell County Law Enforcement Center on a parole warrant and on a new charge for failing to register
as a sex offender. On January 11, 2017, Plaintiff was convicted of failure to register as a sex
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offender and was sentenced to two years in prison. He was recently transferred to the Texas
Department of Criminal Justice - Correctional Institutions Division.
Plaintiff explains, in 1974, when he was 18 years of age, he and two friends met two girls at
a Dairy Queen in Belton. They consumed alcohol, and Plaintiff had sex with one of the girls, who
he later learned was 14. Plaintiff admitted to having sex with the girl. A jury found him guilty of
“rape of a child,” and he was sentenced to four years in prison. Plaintiff discharged his sentence in
1978, and allegedly was granted clemency by the Texas Board of Pardons and Paroles.
In 1997 Plaintiff was convicted in Bell County of forgery, theft, and burglary. Plaintiff was
released on parole in 2003. At the time of his release, the Parole Board imposed sex-offender
treatment as a condition of his parole and informed Plaintiff of his duty to register as a sex offender
for the rest of his life.1 After his release on parole, Plaintiff requested to be removed from sexoffender treatment. His request was granted. However, he was still required to register as a sex
offender. Sometime in 2005, Plaintiff violated the terms of his parole, and he was returned to prison.
Plaintiff was paroled once again in May 2013. Upon his release, Plaintiff was required to
attend sex-offender treatment. He immediately voiced his objection to the treatment. Plaintiff
complains his parole officer, Amy Carr, and his treatment provider, Mr. Smith, did nothing to
address his complaints. In July 2013, Plaintiff allegedly sent a petition to Rissie Owens, Chairperson
of the Board of Pardons and Paroles; J. Bon-Jorno, Director of the Sex Offender Council on
Treatment; and Amy Carr, his parole officer.

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Both Special Condition X (sex-offender treatment) and Special Condition M (sex-offender
registration) were related to Plaintiff’s 1974 conviction for rape of a child.
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Plaintiff asserts his petition was acknowledged, and he was required to take a polygraph.
During Plaintiff’s polygraph examination, Plaintiff admitted to attending a bull riding event, going
to the lake, and eating at a McDonald’s. Being in such locations, violated the conditions of
Plaintiff’s parole. After the polygraph, Carr allegedly refused to remove Plaintiff from the sexoffender treatment program and instead added the requirement that Plaintiff wear a GPS monitoring
device. According to Plaintiff, the device was placed on him in November 2013. Plaintiff contends
the monitor caused him to lose his fiancé and prohibited him from attending church.
Hoping to have the GPS monitor removed, Plaintiff took a second polygraph test. Plaintiff
allegedly “passed” all the questions relating to his “sex conditions,” but failed the question regarding
illegal drug use. Accordingly, the Temple Parole Director denied Plaintiff’s request to remove the
GPS monitor.
Plaintiff subsequently “deactivated” the GPS monitor. He was arrested and jailed in
Brownwood, Texas in May 2014. Plaintiff indicates he was transferred to an Intermediate Sanctions
Facility in July 2014 and remained there until October 2014.
In October 2014, Plaintiff asserts he was transferred to a Houston parole facility operated by
GEO. His parole officer, Mr. Doneley, allegedly told Plaintiff the GPS monitor would stay on until
Plaintiff found a job. Doneley also allegedly took Plaintiff to Harris County officials to register as
a sex offender. Because Plaintiff was considered to still be in custody at the GEO facility, Plaintiff
asserts he was unable to register.
In November 2014, Petitioner allegedly sent a second petition to Owens and Bon-Jorno
challenging the sex-offender conditions. He states Owens, Bon-Jorno, and Doneley took no action.

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Because no action was taken, Plaintiff walked away from the facility. Plaintiff was arrested on
April 4, 2016, in Belton, Texas for violating his parole and for failing to register as a sex offender.
Plaintiff sues Rissie Owens, the Director of the Temple Parole Division, Amy Carr, Mr.
Smith, Charles Doneley, J. Bon-Jorno, and six unknown Members of the Council on Sex Offender
Treatment. He requests a declaratory judgment, injunctive relief and monetary damages.
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.

Statute of Limitations

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
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(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.
Plaintiff’s claims against Parole Officer Amy Carr, Treatment Provider Mr. Smith, and the
Director of the Temple Parole Office are time-barred. These claims accrued prior to Plaintiff’s
incarceration in Brownwood, Texas in May 2014. Plaintiff did not execute his original complaint
in this case until November 14, 2016, after the limitations period had expired.
C.

Immunity

Being sued in their official capacities for monetary damages, Defendants Owens, Doneley,
Bon-Jorno, and the Members of Council on Sex Offender Treatment 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).
Defendants Owens and Doneley are also protected from Plaintiff’s claims brought against
them in their individual capacities for monetary damages by the doctrine of absolute immunity. See
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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.
D.

Sex-Offender Treatment

Plaintiff does not appear to be challenging the Parole Board’s initial decision to impose
Condition X upon his release to parole in May 2013. Rather, Plaintiff appears to be challenging the
lack of process he was given when he requested that sex-offender treatment be discontinued.
Plaintiff appears to recognize that due to his 1974 conviction he has no valid claim with
regard to the imposition of Special Condition X. In a case such as this, the standard governing due
process was made clear by the Fifth Circuit in Jennings v. Owens, 602 F.3d 652 (5th Cir. 2010). As
set forth therein, a liberty interest sufficient to invoke the protections of due process is implicated
when an offender suffers a change in the conditions of confinement which is both stigmatizing and
qualitatively different from the punishment characteristically suffered by a person convicted of a
crime. Id. at 657-58. The court made clear a finding of stigma required an offender to be subjected
to a label which was false. Id. at 658. The Fifth Circuit recognized the sex-offender conditions
imposed by Texas were qualitatively different than other conditions attending an inmate’s release.
Id. at 658. The Fifth Circuit further recognized the conditions would cause stigma “if they were
imposed on an individual who . . . had never been convicted of a sex offense.” Id. at 659. However,
the court concluded stigma could not attach to Jennings as a result of the imposition of sex-offender
conditions because the label of “sex offender” was not false as it accurately reflected his prior
conviction history, a history he had a full and fair opportunity to contest at the time of his conviction.
Id. at 659. The Fifth Circuit has made clear a parolee who has been previously convicted of a sex
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offense may be subject to labeling as a sex offender by Texas parole authorities without additional
process being afforded.
Plaintiff has not demonstrated a violation of his constitutional rights with regard to the
defendants’ refusal to remove him from sex-offender treatment. Plaintiff admits he had sex with an
underage female, and as a result, he was convicted of rape of a child. As a convicted sex offender,
Plaintiff received all the process he was due. Moreover, Plaintiff also admits the defendants
considered whether to remove Plaintiff from sex-offender treatment, but due to Plaintiff’s violation
of his parole conditions, sex-offender treatment was continued. Accordingly, Plaintiff’s claims
regarding sex-offender treatment against Defendants Owens, Doneley, Bon-Jorno, and Members on
Sex Offender Treatment fail to state a claim upon which relief can be granted.
2. Sex-Offender Registration
Plaintiff contends his duty to register as a sex offender expired after ten years. He argues he
is not required to register for the rest of his life.
Plaintiff’s challenge regarding sex-offender registration is barred by 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.
On January 11, 2017, Plaintiff was convicted of failing to register as a sex offender and
sentenced to two years in prison. Plaintiff cannot challenge the registration requirement in this case

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until his conviction has been reversed, expunged, invalidated, or called into question by a federal
court’s issuance of writ of habeas corpus. Accordingly, Plaintiff’s claims with regard to sex-offender
registration should be dismissed without prejudice to refile once the conditions of Heck are met.
Plaintiff should be allowed to refile only upon a showing that his conviction “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.”
Heck, 512 U.S. at 486-87.
RECOMMENDATION
It is therefore recommended that Plaintiff’s time-barred claims against Defendants Director
of Temple Parole Office, Amy Carr, and Mr. Smith be dismissed with prejudice as frivolous
pursuant to 28 U.S.C. § 1915(e). It is further recommended that Plaintiff’s claims for monetary
damages against Defendants Owens, Doneley, Bon-Jorno, and Members of Council on Sex Offender
Treatment, in their official capacities, be dismissed without prejudice for want of jurisdiction. It is
further recommended that Plaintiff’s claims against Defendants Owens and Doneley in their
individual capacities for monetary damages be dismissed with prejudice as frivolous pursuant to 28
U.S.C. § 1915(e). It is further recommended that Plaintiff’s claims against Defendants Owens,
Doneley, Bon-Jorno, and the Members of Council on Sex Offender Treatment relating to sexoffender treatment be dismissed with prejudice for failure to state a claim upon which relief can be
granted pursuant to 28 U.S.C. § 1915(e). It is finally recommended that Plaintiff’s claims against
Defendants Owens, Doneley, Bon-Jorno, and the Members of Council on Sex Offender Treatment
relating to sex-offender registration be dismissed without prejudice to refile once the conditions of
Heck are met.
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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 keeper
of the three-strikes list.
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).
SIGNED on February 22, 2017.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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