Dudley v. Thielke et al

Filing 26

REPORT AND RECOMMENDATIONS re 14 Motion for Judgment on the Pleadings filed by Amy Kiel, Sandra Mims, Jessica Kuhre, Joel Butler, Pamela Thielke, Stuart Jenkins, 11 Motion for Summary Judgment filed by Antonio Dudley, 23 Motion for Preliminary Injunction filed by Antonio Dudley. Signed by Judge Mark Lane. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ANTONIO DUDLEY
TDCJ #567960
V.
PAMELA THIELKE, SANDRA MIMS,
JESSICA KUHRE, AMY KIEL,
JOEL BUTLER and STUART JENKINS

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A-17-CA-568-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 are Plaintiff’s complaint (Docket Entry “DE” 2-2); Plaintiff’s Motion for
Summary Judgment (DE 11); Plaintiff’s Proposed Settlement and Supplement to his Motion for
Summary Judgment (DE 12); Defendants’ Response to Plaintiff’s Motion for Summary Judgment
(DE 13); Defendants’ Motion for Judgment on the Pleadings (DE 14); and Plaintiff’s request for
preliminary injunction (DE 23). Plaintiff filed his original complaint in state court, and the
defendants removed the action to this Court.

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STATEMENT OF THE CASE
At the time he filed his complaint, Plaintiff was confined in the Clements Unit of the Texas
Department of Criminal Justice - Correctional Institutions Division. Plaintiff challenges the 2015
revocation of his parole.
Plaintiff alleges he was released to parole on November 15, 2012. At that time, Plaintiff had
served 23 years on a 50-year sentence for attempted murder in Harris County, Texas. Plaintiff
asserts he was released to the Super Intensive Supervision Program (“SISP”), which subjected him
to restrictive conditions and GPS monitoring. He further alleges his parole certificate required that
he register as a sex offender. Plaintiff’s parole revocation proceedings are included in the state court
records filed in his federal habeas corpus proceedings. See Dudley v. Davis, No. 4:15-CV-3410 (S.D.
Tex. Sept. 30, 2016) (DE 10). Special conditions L, S, and SISP were imposed upon Plaintiff’s
release. L requires the maximum level of supervision. S requires participation in a substance
treatment program. SISP requires participation in th Super Intensive Supervision Program. Neither
Condition X (sex offender treatment) nor Condition M (sex offender registration) was imposed.
During his release on parole, Plaintiff admits he was sent to an Intermediate Sanctions
Facility (“ISF”) on multiple occasions for violating the conditions of his parole. After his third stay
at an ISF, Plaintiff was released on February 20, 2015. On March 7, 2015, his parole officer, Jessica
Kuhre, imposed a two-week home lockdown, because Plaintiff left his GPS monitor on the bus in
which he had traveled. On March 9, 2015, Plaintiff indicates he sent a text message to Kuhre,
expressing resentment for the lockdown sanction. The text message stated, “At this time, it feels
good to say, you can give me a real good fucken, then get your hell out my life.” A revocation
warrant for Plaintiff was issued the following day, and Plaintiff was transferred to Parole Officer
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Amy Kiel’s caseload. Plaintiff was initially charged with sexual harassment, but the charge was later
amended to harassment. Plaintiff was found guilty by Parole Hearing Officer Joel Butler. Plaintiff
indicates he was revoked and returned to TDCJ on April 28, 2015.
Plaintiff seeks his immediate release in addition to damages. Plaintiff sues Stuart Jenkins,
Sandra Mims, Jessica Kuhre, Amy Kiel, and Joel Butler. To the extent Plaintiff sues Stuart Jenkins
in his official capacity, Pamela Thielke, the acting Director of the Parole Division of the Texas
Department of Criminal Justice, has been substituted.
Plaintiff contends Defendants violated his First Amendment right to protected speech (his
text message) and retaliated against him because of his speech. Plaintiff further contends the
defendants violated his right to due process.
Defendants move for a judgment on the pleadings. They contend habeas corpus relief is not
an available remedy in a civil rights case. They further contend Plaintiff’s claims for monetary
damages are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
DISCUSSION AND ANALYSIS
A.

Standard Under Rule 12(c)

A court may hear a party’s motion for judgment on the pleadings after the pleadings are
closed. FED. R. CIV. P. 12(c). The standard for deciding a Rule 12(c) motion is the same as that for
a Rule 12(b)(6) motion to dismiss for failure to state a claim. Great Plains Trust Co. v. Morgan
Stanley Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002).
Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, a court must
“accept the complaint’s well-pleaded facts as true and view them in the light most favorable to the
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plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). “To survive a Rule 12(b)(6)
motion to dismiss, a complaint ‘does not need detailed factual allegations,’ but must provide the
plaintiff’s grounds for entitlement to relief—including factual allegations that when assumed to be
true ‘raise a right to relief above the speculative level.’” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th
Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a complaint
must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 562, 678 (2009) (quoting Twombly, 550 U.S. at 570).
B.

Immunity

Although not mentioned by defendants, Plaintiff’s claims against them in their official
capacities for monetary damages are barred by Eleventh Amendment immunity. 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).
C.

Heck Bar

To the extent Plaintiff challenges the revocation of his parole and sues the defendants in their
individual capacities for monetary damages Plaintiff’s claims are 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
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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 revocation of parole has been reversed,
expunged, invalidated, or called into question by a federal court’s issuance of writ of habeas corpus.
Rather, Plaintiff’s petition for habeas corpus relief, based on the same facts he presents in his civil
rights complaint, was dismissed with prejudice on September 30, 2016. Dudley v. Davis, No. 4:15CV-3410 (S.D. Tex. Sept. 30, 2016). Accordingly, Plaintiff’s claims challenging the revocation of
parole are barred by Heck until the decision to revoke his parole “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.
D.

Habeas Claims

To the extent Plaintiff seeks his release, he must seek such relief in an application for habeas
corpus. 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 not construe this action as a petition for habeas corpus relief,
because the petition would be successive. The Fifth Circuit Court of Appeals has not granted
Plaintiff permission to file a successive habeas corpus petition. Therefore, the Court would be
without jurisdiction over the successive petition.
RECOMMENDATION
It is therefore recommended that Defendants’ Motion for Judgment on the Pleadings (DE 14)
be GRANTED, Plaintiff’s Motion for Summary Judgment (DE 11) be DENIED, and Plaintiff’s
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motion for preliminary injunction (DE 23) be DISMISSED. Plaintiff’s claims for monetary damages
brought against the defendants in their official capacities should be dismissed without prejudice for
want of jurisdiction, Plaintiff’s claims for monetary damages brought against the defendants in their
individual capacities should be dismissed with prejudice until the conditions of Heck are met, and
Plaintiff’s claims seeking his immediate release should be dismissed without prejudice to refiling
a habeas corpus petition after Plaintiff has been granted permission to file a successive petition.
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 November 16, 2017.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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