United States District Court, S.D. Texas, Corpus Christi Division
Tagle, Senior United States District Judge
Phillip B. Jackson (“Jackson”), a Texas state
prisoner, filed this civil rights action pursuant to 42
U.S.C. § 1983. Jackson is currently incarcerated at the
Wayne Scott Unit in Angleton, Texas. Jackson alleges that
Defendant David Gutierrez (“Gutierrez”),
Presiding Officer of the Texas Board of Pardons and Paroles,
illegally and unconstitutionally revoked his eligibility for
House Bill 1433 (“H.B. 1433”) discretionary
mandatory supervision after Jackson was allegedly previously
September 11, 2000, Jackson pleaded guilty to the felony
offense of aggravated assault, cause number 00-CR-2318-D, in
the 105th Judicial District Court of Nueces County, Texas.
See State v. Jackson, No. 00-CR-2318-D
(105thDistrict Court, Nueces County, Texas, July
29, 2003), D.E. 38-1, p. 4. His offense took place on April
23, 2000. Id. Pursuant to a plea agreement, the
trial court deferred the adjudication of guilt and placed
Jackson on probation. The State of Texas filed a motion to
proceed with the adjudication of guilt, alleging Jackson
violated the terms of his probation. On July 22, 2003, the
trial court held a hearing on the State's motion and
found Jackson violated six conditions of his probation
agreement. Accordingly, the trial court withdrew the order
deferring adjudication and heard evidence on the issue of
punishment. On July 24, 2003, the trial court sentenced
Jackson to twelve years in the Texas Department of Criminal
Justice (“TDCJ”). Id., p. 4-5.
September 29, 2003, Jackson was taken into custody of the
TDCJ. D.E. 38-2, p. 3. On December 12, 2008, he was released
from TDCJ custody on parole. Id. On December 19,
2012, Plaintiff's parole was revoked and he received a
two-year sentence for the conviction which violated his
parole (assault family violence in cause no. 12-CR-4155-H).
Id. On May 6, 2013, Plaintiff was returned to TDCJ
custody due to his parole revocation and to serve his new
sentence. D.E. 38-2, p. 4.
Court has before it Jackson's Complaint (D.E. 1),
Jackson's Motion for Summary Judgment and declaration in
support (D.E. 22, 23), Jackson's Motion for Preliminary
Injunction to compel Gutierrez to reinstate mandatory
supervision eligibility (D.E. 26, 28), Gutierrez's Motion
for Summary Judgment (D.E. 38), the Memorandum and
Recommendations (“M&R”) of the Magistrate
Judge to whom this case was referred pursuant to 28 U.S.C.
§ 636(b) (D.E. 60), and Jackson's objections to the
M&R (D.E. 62). Gutierrez did not file objections to the
Magistrate Judge recommended that Gutierrez's Motion for
Summary Judgment be granted, Jackson's motions be denied,
this action be dismissed, and Gutierrez's request for a
strike under 28 U.S.C. § 1915(g) be denied. See
M&R, D.E. 60. Jackson objects to the M&R on several
Statute of Limitations
objects to the Magistrate Court's finding that
Jackson's claims are barred by the statute of
limitations. See D.E. 62, p. 5-11; see also
M&R, p. 9.Jackson's objections focus largely on
the argument that his alleged constitutional violation is a
continuing violation, and therefore his claim is not
time-barred. See D.E. 62, p. 5-10. Under a
continuing violation theory, a new claim accrues each day the
violation is extant. Interamericas Investments, Ltd. v.
Bd. of Governors of the Fed. Reserve Sys., 111 F.3d 376,
382 (5th Cir. 1997) (citing Hanover Shoe, Inc. v. United
Shoe Machinery Corp., 392 U.S. 481, 502 n.15. A
continuing violation applies where the conduct is ongoing,
rather than a single event. Id. When a claim
constitutes a continuing violation, the limitations period
begins to run at the end of the violation. Dews v. Town
of Sunnyvale, 109 F.Supp.2d 526, 563 (N.D. Tex. 2000).
Courts “must be careful not to confuse continuous
violations with a single violation followed by continuing
consequences; only continuous unlawful acts can form the
basis of a continuous violation.” McGregor v. La.
State Univ. Bd. of Sup'rs, 3 F.3d 850, 867 (5th Cir.
1993) (citing United Air Lines, Inc. v. Evans, 431
U.S. 553, 558 (1977)). The Fifth Circuit has warned that the
“theory of continuing violation has to be guardedly
employed because within it are the seeds of destruction of
the [applicable] statute of limitation.” Abrams v.
Baylor College of Med., 805 F.2d 528, 533 (5th
Fifth Circuit has held that the continuing violation doctrine
applies to claims brought under 42 U.S.C. § 1983.
Heath v. Bd. of Supervisors for S. Univ. & Agric.
& Mech. Coll., No. 16-30625, 2017 WL 923408, at *5
(5th Cir. Mar. 8, 2017) (reversing a magistrate judge's
finding that plaintiff's section 1983 hostile work
environment allegations did not constitute a continuing
violation); see also Boswell v. Claiborne Parish Det.
Ctr., 629 Fed. App'x. 580, 583 (5th Cir. 2015)
(finding plaintiff had pleaded a continuing violation in a
section 1983 denial of medical attention case).
undersigned declines to adopt the M&R recommendation that
Jackson's claim is time-barred by the statute of
limitations. Because there is a constitutional expectancy of
early release created by the mandatory supervision program in
Texas, see Teague v. Quarterman, 482 F.3d 769, 777
(5th Cir. 2007), and an inmate eligible for release to
mandatory supervision has a protected liberty interest in
that release, see Kossie v. Crain, 602 F.Supp.2d
786, 790-91 (S.D. Tex. 2009) (citing Ex Parte
Geiken, 28 S.W.3d 553, 558-59 (Tex. Crim. App. 2000)
(en banc)),  an individual alleging that he remains
incarcerated despite having this protected liberty interest
could be deemed to be suffering a continuing due process
violation. Without deciding whether the continuing violation
doctrine applies to toll limitations on Jackson's section
1983 claim, the undersigned proceeds to evaluate
Jackson's objections to the Magistrate Judge's
finding that he was not eligible for H.B. 1433 mandatory
Eligibility for Mandatory Supervision
Jackson argues that the Magistrate Judge's first M&R
issued on March 14, 2016 (“March 14, 2016
M&R”), D.E. 11, and adopted by the undersigned,
D.E. 33, entitles Jackson to declaratory and injunctive
relief. That March 14, 2016 M&R evaluated Jackson's
claims under the motion to dismiss standard. See
D.E. 11, p. 4. That standard asks whether a Plaintiff has
“state[d] a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). “To state a
claim under 42 U.S.C. § 1983, a plaintiff must allege
the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged
deprivation was committed by a person acting under color of
state law.” West v. Atkins, 487 U.S. 42, 48
(1988); see also D.E. 11, p. 4. The Magistrate Judge
found that Jackson's allegations and claims met this
standard. Id., p. 9. The Magistrate Judge
“recommended that the Court retain Plaintiff's
parole eligibility claim and order service on David Gutierrez
in his official capacity.” Id. However, this
March 14, 2016 M&R is in no way dispositive of the
Court's findings at the summary judgment stage of
litigation-which asks whether the pleadings, discovery
materials, and the summary judgment evidence show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; see also M&R, D.E. 60, p. 6.
also objects to the Magistrate Judge's finding that he
was not eligible for H.B. 1433 mandatory supervision. D.E.
62, p. 11-13; see also M&R, D.E. 60, p. 9-15.
The Magistrate Judge found that Jackson was convicted of
second-degree felony aggravated assault under Texas Penal
Code Section 22.02, and therefore has never been eligible for
mandatory supervised release. M&R, D.E. 60, p. 13 (citing
State of Texas v. Phillip Jackson, No. 00-CR-2318-D
(July 29, 2003, 105th District Court, Nueces
County, Texas)), D.E. 38-1, pp. 3-5; Tex. Gov't Code
Jackson argues that his April 2000 offense “was a
statutory precursor to [the] simple assault statute, of
offender Plaintiff, not agg[ravated] assault statute.”
D.E. 62, p. 12. “The laws applying to Plaintiff . . .
when he committed the offense permitted his release to H.B.
1433 discretionary mandatory supervision.” Id.
Jackson also argues that the statute under which he was
convicted required there to be an affirmative finding of a
deadly weapon or serious bodily injury to constitute a crime
that would preclude eligibility for mandatory supervision.
Id. Jackson points out that under the section for
“Findings on Use of Deadly Weapon” in his
Judgment, the Judgment states “Not applicable.”
See State v. Jackson, No. 00-CR-2318-D
(105th District Court, Nueces County, Texas, July
29, 2003), D.E. 38-1, pp. 3. In sum, Jackson is making the
argument that the offense upon which he was convicted did not
meet the statutory precursor of aggravated assault or any
other offense enumerated in Texas Government Code Section
508.149(a), and, ...