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Rodgerson v. Board of Pardons and Paroles

United States District Court, Fifth Circuit

October 23, 2013

RALPH RODGERSON #1612194
v.
BOARD OF PARDONS AND PAROLES

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

ANDREW W. AUSTIN, Magistrate Judge.

TO: THE HONORABLE SAM SPARKS 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 Magistrates, as amended, effective December 1, 2002.

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 Michael Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff complains the Texas Board of Pardons and Paroles has shown a total disregard to his institutional adjustments and achievements and denied him parole on three occasions. He sues the Board of Pardons and Paroles and requests the Court to order the Board to grant him a special review. He also asks the Court to look into why he does not have a "short way mandatory supervision date."

DISCUSSION AND ANALYSIS

A. 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, 92 S.Ct. 594 (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).

B. Eleventh Amendment Immunity

The Board of Pardons and Paroles is 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 , 465 U.S. 89, 104 S.Ct. 900 (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, 110 S.Ct. 1868, 1871 (1990). Accordingly, Plaintiff's complaint should be dismissed for lack of jurisdiction.

C. Parole

Allowing Plaintiff to amend his complaint to name a proper defendant would be futile. Plaintiff has also failed to state a ...


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