Joseph v. Texas Board of Pardons and Paroles et al
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).
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 Joseph complained that although he was on parole for committing theft, his p a r o l e was revoked for failing to register as a sex offender, failing to enroll or participate in a sex o ffe n d e r treatment program, and for removing a sex offender ankle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).
See docket entry # 2, p. 4.
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
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).
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).
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 ).
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).
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).
Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
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