Joseph v. Texas Board of Pardons and Paroles et al

Filing 30

REPORT AND RECOMMENDATIONS re 27 Motion for Miscellaneous Relief filed by Rissie Owens, 1 Complaint filed by Leroy Joseph. Signed by Judge Nancy Stein Nowak. (Copies served by certified mail or electronically)(tm)

U N I T E D STATES DISTRICT COURT W E S T E R N DISTRICT of TEXAS S A N ANTONIO DIVISION L E R O Y JOSEPH, P la in tif f, v. T E X A S BOARD OF PARDONS AND PARO LES, R I S S I E OWENS, JENNIFER CURREY, R Y A N CHAMBER, D e f e n d a n ts . § § § § § § § § § § § §

Civil Action No. SA-09-CA-485-XR (NN)

R E P O R T AND RECOMMENDATION TO: H o n . Xavier Rodriguez U n ite d States District Judge T h is report and recommendation recommends dismissing this case under Rule 12(b)(6) of th e Federal Rules of Civil Procedure for failure to state a claim. Although there is no pending m o t io n to dismiss, the "district court may dismiss an action on its own motion under Rule 1 2 (b )(6 ) `as long as the procedure employed is fair.'" 1 In this case, there is no question that the p r o c e s s is fair because I issued a show cause order directing the plaintiff to address deficiencies in his pleadings and giving him the opportunity to amend his complaint.2 In addition, analyzing th e merits of a plaintiff's claim in a report and recommendation and giving the plaintiff an o p p o rtu n ity to object to the recommendation is a fair process for dismissing a case. N a t u r e of the Case. Plaintiff Leroy Joseph filed this case under 42 U.S.C. § 1983. As d e fe n d a n t s , Joseph named the Texas Board of Pardons and Paroles; Rissie L. Owens, a member

Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998). See Carroll v. Fort James Corp., 470 F .3 d 1171, 1177 (5th Cir. 2006) (explaining that the "district court may dismiss a complaint on i ts own for failure to state a claim" so long as a fair procedure is employed).
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1

See docket entry # 3.

o f the Texas Board of Pardons and Paroles; and two Texas parole officers, Jennifer Currey and R ya n Chambers. Joseph complained that although he was on parole for committing theft, his p a r o l e was revoked for failing to register as a sex offender, failing to enroll or participate in a sex o ffe n d e r treatment program, and for removing a sex offender ankle bracelet (sex-offender c o n d itio n s ). The sex-offender conditions were imposed upon Joseph as a condition of parole for th e ft, based on his 1980 conviction for rape of a child. Joseph maintains that revocation based on t h e conditions deprived him of civil rights because he was convicted of a sexual offense prior to th e enactment of Texas law requiring such conditions as conditions of parole for Texas sex o ffe n d e rs .3 Joseph claims that he has been deprived of his rights to equal protection, to be free fro m double jeopardy, and to be free from cruel and unusual punishment, because he was p u n is h e d a second time for his offense. He complains he received a greater punishment for the s e x offense than was available when he committed the sex offense.4 Joseph also brings a statel a w claim for intentional infliction of emotional distress. As relief, Joseph seeks $3 million in c o m p e n s a to ry damages and $30 million in punitive damages for violations of his civil rights, and $ 5 0 0 ,0 0 0 in compensatory damages and $ 5 million in punitive damages for his alleged e m o tio n a l injury.5 A p p lic a b le standards. To state a claim pursuant to Rule 12(b)(6), the plaintiff's a lle ga tio n s must present "enough facts to state a claim to relief that is plausible on its face," i.e.

See Tex. Crim. Proc. Code Ann. § 62.051 (Vernon 2006 & Supp. 2009). Texas's sex o ffe n d e r registration statute applies to defendants convicted of enumerated sexual offenses and to th o s e who must register as a condition of parole. Joseph does not complain about the due process violation addressed by the Fifth Circuit in C o l e m a n v. Dretke, 395 F.3d 216 (5th Cir. 2004) (prisoner who was not convicted of a sex o ffe n s e had right to procedural protections before imposition of sex offender parole convictions).
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3

See docket entry # 2, p. 4.

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th e "[f]actual allegations must be enough to raise a right to relief above the speculative level," a n d "labels and conclusions, and a formulaic recitation of the elements of a cause of action will n o t do." 6 "To state a claim under § 1983, a plaintiff must allege the violation of a right secured b y the Constitution and laws of the United States, and must show that the alleged deprivation was c o m m i tt e d by a person acting under color of state law." 7 Joseph's allegations fail to state a claim u n d e r section 1983 for the following reasons. R e a s o n s for dismissal. The first reason Joseph's section 1983 claim fails is because the re v o c a tio n of his parole has not been invalidated. To the extent Joseph complains about the re v o c a tio n of parole or mandatory supervision due to the failure to comply with the sex-offender c o n d itio n s , his section 1983 claim does not accrue until his conviction or sentence (here, the re v o c a tio n of his parole) has been "declared invalid by a state tribunal authorized to make such d e te rm in a tio n , or called into question by a federal court's issuance of a writ of habeas corpus." 8 J o s e p h questions the validity of his confinement resulting from his parole revocation. He has not in d ic a te d that a state or federal court has invalidated the result of the revocation proceeding. Thus, Joseph has no basis for a civil rights action.9 T h ere are also substantive reasons Joseph's section 1983 claims fails. Joseph cannot

6

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). West v. Atkins, 487 U.S. 42, 48 (1988). Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

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8

See Littles v. Bd of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995) (affirming d i s m i s s a l of section 1983 claim under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), because th e plaintiff had not alleged that the parole board's revocation decision had been reversed, e x p u n ge d , set aside, or called into question). The Heck doctrine continues to apply even though p l a in t iff has been released from confinement, has discharged his current offense, and is no longer u n d e r the supervision of the TDCJ-Parole Division. See Randell v. Johnson, 227 F.3d 300 (5 th C i r. 2000).

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p r e v a i l on his equal-protection claim because he cannot show that sex offenders are a suspect c la s s or that they have been denied a fundamental right.10 His ex-post-facto-clause claim does n o t state a claim for relief because sex offender registration statutes are not punitive.11 Joseph's d o u b le -je o p a rd y claim and his cruel-and-unusual punishment claim fail for the same re a s o n -- b e c a u s e sex offender registration statutes are non-punitive in nature.12 R e co m m e n d a tio n . I recommend dismissing Joseph's section 1983 claim for the reasons d is c u s s e d above. In the absence of a viable section 1983, the district court has no basis for ju ris d ic tio n over Joseph's claim for intentional infliction of emotional distress. Consequently, I re c o m m e n d dismissing this case. If the district judge accepts these recommendations, defendant O w e n s ' motion for Rule 7(a) reply (docket # 27) can be denied as moot. Joseph addressed the r e l ie f sought by the motion in his response and amended complaint (docket entry # 29). I n s tr u c tio n s for Service and Notice of Right to Object/Appeal. The United States D i s tric t Clerk shall serve a copy of this report and recommendation on all parties by either (1) e le c tro n ic transmittal to all parties represented by attorneys registered as a "filing user" with the c le rk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt re q u e s te d . Written objections to this report and recommendation must be filed within 14 days a ft e r being served with a copy of same, unless this time period is modified by the district court.13 S u c h party shall file the objections with the clerk of the court, and serve the objections on all

Brown v. Dretke, 184 Fed. App'x 384, 385 (5th Cir. 2006); Breshears v. Garrett, 143 Fed. A p p ' x 570 (5th Cir. 2005). Smith v. Doe, 538 U.S. 84, 103-04 (2003); Rieck v. Cockrell, 321 F.3d 487, 488 (5th Cir. 2 0 0 3 ).
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10

Creekmore v. Attorney General of Texas, 341 F. Supp. 2d 648, 663 (E.D. Tex. 2004). 28 U.S.C. §636(b)(1); Fed. R. Civ. P. 72(b).

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o t h e r parties and the magistrate judge. A party filing objections must specifically identify those fin d in gs , conclusions or recommendations to which objections are being made and the basis for s u c h objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and re c o m m e n d a tio n s contained in this report shall bar the party from a de novo determination by the d i s tric t court.14 Additionally, failure to file timely written objections to the proposed findings, c o n c lu s i o n s and recommendations contained in this memorandum and recommendation shall bar th e aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjectedt o proposed factual findings and legal conclusions accepted by the district court.15 S I G N E D on March 1, 2010.

_____________________________________ N A N C Y STEIN NOWAK U N IT E D STATES MAGISTRATE JUDGE

Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuņa v. Brown & Root, 200 F.3d 335, 340 ( 5 t h Cir. 2000).
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14

Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

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