Stell v. Mr. Fox, et al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Tammy Stell. It is therefore recommended that Plaintiffs claims brought against the Board of Pardons and Paroles and Defendant Fox in his official capacity for monetary damages be dismissed without prejudice for want of jurisdiction. Signed by Judge Mark Lane. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
TAMMY STELL #1834675
MR. FOX and BOARD OF PARDONS
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE SAM SPARKS
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 Magistrate Judges.
Before the Court are Plaintiff’s complaint and more definite statement. Plaintiff, proceeding
pro se, has been granted leave to proceed in forma pauperis.
STATEMENT OF THE CASE
At the time she filed her complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in
the Hobby Unit of the Texas Department of Criminal Justice - Correctional Institutions Division.
Plaintiff alleges Parole Commissioner Troy Fox “lied one year on [her] to keep [her] confined.” She
sues Troy Fox and the Board of Pardons and Paroles. Plaintiff requests to be “justified through
polygraph test, set free, also pull a claim for $300,000.00 and fired and put in jail.”
After consideration of Plaintiff’s complaint, the Court ordered Plaintiff to file a more definite
statement. Plaintiff clarifies, sometime in June 2010, she was interviewed for parole by Defendant
Fox. Defendant Fox allegedly accused Plaintiff of being disruptive in the parole interview. Plaintiff
was subsequently denied parole. Plaintiff indicates she has written to the Board of Pardons and
Paroles and notified the Board that Defendant Fox lied.
DISCUSSION AND ANALYSIS
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).
Eleventh Amendment Immunity
Pursuant to the Eleventh Amendment, federal courts are without jurisdiction over suits
against a state agency unless that state has waived its sovereign immunity or Congress has clearly
abrogated it. Moore v. La. Bd. of Elementary and Secondary Educ., 743 F.3d 959, 963 (5th Cir.
2014). The Texas Board of Pardons and Paroles is immune under the Eleventh Amendment from
Plaintiff’s suit. See Talib v. Gulley, 138 F.3d 211, 213 (5th Cir. 1998); Littles v. Bd. of Pardons &
Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995).
Being sued in his official capacity for monetary damages, Defendant Fox is also immune
from suit under the Eleventh Amendment because such an action is the same as a suit against the
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).
Defendant Fox is also protected from Plaintiff’s claims brought against him in his individual
capacity for monetary damages by the doctrine of 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 decisionmaking powers. Id.
To the extent Plaintiff wants Defendant Fox jailed her claim is frivolous. Plaintiff does not
have a constitutional right to have someone criminally prosecuted. Oliver v. Collins, 914 F.2d 56
(5th Cir. 1990).
To the extent Plaintiff may be attempting to raise a due process claim, her 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 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, she has no claim for violation of due process in the
procedures attendant to her parole decisions. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995).
To the extent Plaintiff seeks her immediate release, she must seek such relief in an
application for habeas corpus relief after she has exhausted her state court remedies. The exclusive
remedy for a prisoner who challenges the fact or duration of her confinement and seeks immediate
or speedier release is habeas corpus relief. Preiser v. Rodriguez, 411 U.S. 475, 488-490 (1973).
Plaintiff indicates she has not filed a state application for habeas corpus relief. Rather, she wrote
letters to the Texas Governor and the President of the United States. As Plaintiff has not presented
her habeas claims to the Court of Criminal Appeals in a procedurally correct manner, she has not
exhausted her state court remedies.
It is therefore recommended that Plaintiff’s claims brought against the Board of Pardons and
Paroles and Defendant Fox in his official capacity for monetary damages be dismissed without
prejudice for want of jurisdiction. It is further recommended that Plaintiff’s claims brought against
Defendant Fox in his individual capacity be dismissed with prejudice as frivolous pursuant to 28
U.S.C. § 1915(e). It is finally recommended that Plaintiff’s claims seeking her immediate release
be dismissed without prejudice to filing an application for habeas corpus relief after she has
exhausted her state court remedies.
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
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 she is a prisoner which are dismissed as frivolous or malicious or for failure
to state a claim on which relief may be granted, then she 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.
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 keeper of the three-strikes list.
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 17, 2017.
UNITED STATES MAGISTRATE JUDGE
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