Lujan vs Gutierrez Et Al
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Danny Rodriguez Lujan. It is therefore recommended that Plaintiffs claims seeking monetary damages be dismissed without prejudice to refile once the conditions of Heck are met pursuant to 28 U.S.C. § 1915(e). Signed by Judge Andrew W. Austin. (dm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
DANNY RODRIGUEZ LUJAN #623100
DAVID GUTIERREZ, JOANIE
WHITE, MANAGEMENT &
TRAINING CORP., JAMES
LAFAVERS, RAYMOND GONZALEZ,
DIANE WILSON, and
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
THE HONORABLE ROBERT PITMAN
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 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
West Texas ISF. He was subsequently transferred to the J. Rudd ISF.
Plaintiff is currently serving a 25-year sentence out of Reeves County for possession of
heroin committed on February 4, 1992. Plaintiff argues his sentence expired on February 3, 2017,
and he is being confined illegally. He seeks his immediate release and monetary damages.
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).
Heck v. Humphrey
Insofar as Plaintiff is seeking monetary damages 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 or sentence 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.
To the extent Plaintiff seeks his immediate release, he must seek such relief in an application
for habeas corpus relief. The exclusive remedy for a prisoner who challenges the fact or duration
of his confinement and seeks immediate or speedier release is habeas corpus relief. Preiser v.
Rodriguez, 411 U.S. 475, 488-490 (1973). The Court should decline to construe this action as a
request for habeas corpus relief. If Plaintiff did not intend for this action to be an application for
habeas corpus relief pursuant to 28 U.S.C. § 2254, any subsequently filed applications could be
subject to the restrictions on “second or successive” motions. See e.g. Castro v. United States, 540
U.S. 375, 124 S. Ct. 786 (2003). Additionally, Plaintiff makes no allegations suggesting he has
exhausted his state court remedies. A search of the records of the Court of Criminal Appeals reveals
no state application for habeas corpus relief has been considered by that court.
It is therefore recommended that Plaintiff’s claims seeking monetary damages be dismissed
without prejudice to refile once the conditions of Heck are met pursuant to 28 U.S.C. § 1915(e).
Until the conditions of Heck are met, Plaintiff’s claims are frivolous. It is further recommended that
Plaintiff’s claims seeking habeas corpus relief be dismissed without prejudice to refiling a federal
application for habeas corpus relief after he has exhausted his 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 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.
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)©. 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 this 16th day of August, 2017.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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