IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION ROGER WALLACE HENDERSON § § V. § A-19-CV-1242-LY § LORIE DAVIS, et al. § 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

(b) and Rule 1(f) of Appendix C of the Local Court Rules. 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 Plaintiff was in the Bastrop County Jail on a “blue warrant.” According to Plaintiff, he was convicted of burglary in 1993 and was sentenced to 25 years in prison. Plaintiff believes he should have discharged his sentenced in May 2018. Plaintiff complains every time he was released from prison on parole his sentence was increased. Plaintiff sues Lorie Davis, Director of TDCJ-CID and the State of Texas Parole Board Chairman. Plaintiff requests his immediate discharge from parole and $80,000 for his illegal confinement. DISCUSSION AND ANALYSIS A. Standard Under

(e) According to 28 U.S.C. § 1915A(b)(1), this Court is required to screen any civil complaint in which a prisoner seeks relief against a government entity, officer, or employee and dismiss the complaint if the court determines it is frivolous, malicious, or fails to state a claim on which relief may be granted. See also

(e)(2)(B) (directing court to dismiss case filed in forma pauperis at any time if it is determined that action is (i) frivolous or malicious, or (ii) fails to state

claim on which relief may be granted). An action is frivolous where there is no arguable legal or factual basis for the claim. Neitzke v. Williams,

(1989). “A complaint lacks an arguable basis in law if it is based on an indisputably meritless legal theory, such as if the complaint alleges a violation of a legal interest which clearly does not exist.” Harper v. Showers,

(5th Cir. 1999) (internal quotation and citation omitted). A complaint is factually frivolous when “the facts alleged are ‘fantastic or delusional scenarios’ or the legal theory upon which a complaint relies is ‘indisputably meritless.’” Eason v.

Thaler,

(5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327–28). In evaluating whether a complaint states a claim under sections 1915A(b)(1) and 1915(e)(2)(B), this Court applies the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain,

(5th Cir. 2011); see also FED. R. CIV. P. 12(b)(6). To avoid dismissal under Rule 12(b)(6), “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,

(2009) (quoting Bell Atl. Corp. v. Twombly,

, 555–56, 570 (2007)); see FED. R. CIV. P. 12(b)(6). These factual allegations

need not be detailed but “must be enough to raise a right to relief above the speculative level.” Twombly,

. A conclusory complaint—one that fails to state material facts or merely recites the elements of a cause of action—may be dismissed for failure to state a claim. See

at 555–56. 2 B. Eleventh Amendment Immunity Being sued in their official capacities for monetary damages, Defendants are immune from suit under the Eleventh Amendment because such an action is the same as a suit against the sovereign. Pennhurst State School Hosp. v. Halderman,

(1984). The Eleventh

Amendment generally divests federal courts of jurisdiction to entertain suits directed against states. Port Auth. Trans-Hudson v. Feeney,

(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,

(5th Cir. 1994). C. Heck v. Humphrey Insofar as Plaintiff is seeking monetary damages against Defendants in their individual

capacities for his alleged illegal confinement, Plaintiff’s claims must be dismissed pursuant to Heck v. Humphrey,

(1994) and the Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in Boyd v. Biggers,

(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. Plaintiff filed an application for habeas corpus relief in Cause No. A-16-CV-1044-LY, challenging the State’s failure to award him street-time credit for the time he spent on parole or mandatory supervision. The Court denied Plaintiff habeas corpus relief and found Plaintiff was not being forced 3 to serve more than his 25-year sentence. The Court explained that Plaintiff violated the terms of his supervision and lost credit for that time. Plaintiff does not now allege that his conviction has been reversed, expunged, invalidated, or called into question by a federal court’s issuance of writ of habeas corpus or that he was awarded street-time credit that was previously denied. 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. Heck,

. D. Habeas Claims To the extent Plaintiff seeks his immediate discharge from parole, he must seek such relief in an application for habeas corpus relief after he has exhausted his state court remedies. 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,

(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

, any subsequently filed applications could be subject to the restrictions on “second or successive” motions. See e.g. Castro v. United States,

(2003). Additionally, Plaintiff makes no allegations suggesting he has exhausted his state court remedies. RECOMMENDATION It is therefore recommended that Plaintiff’s complaint be dismissed as frivolous pursuant to

(e). Specifically, Plaintiff’s claims brought against Defendants in their official

capacities for monetary damages should be dismissed without prejudice for want of jurisdiction, Plaintiff’s claims brought against Defendants in their individual capacities for monetary damages should be dismissed without prejudice pursuant to Heck, and Plaintiff’s claims brought against 4 Defendants seeking his release from parole should be dismissed without prejudice to refiling in an application for habeas corpus relief after he has exhausted his state court remedies. 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

(g). 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.

(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.,

(Sth Cir. 1996)(en banc); Thomas v. Arn,

(1985); Rodriguez v. Bowen,

(Sth Cir. 1988). SIGNED this 24" day of January, 2020.

ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE