United States District Court, W.D. Texas, Austin Division
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
LANE UNITED STATES MAGISTRATE JUDGE
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
the Court are Plaintiff Edward Lee Martinez's Amended
Complaint (Document 12); Defendants' Motion to Dismiss,
which was converted to a motion for summary judgment
(Document 18); Plaintiff's response (Document 22);
Plaintiff's Motion for Temporary Restraining Order and
Preliminary Injunction (Document 24); and Defendants'
summary judgment evidence (Document 26). Plaintiff was given
an extension of time to file his own summary judgment
evidence, but did not file any. Plaintiff was granted leave
to proceed in forma pauperis.
OF THE CASE
time he filed his complaint pursuant to 42 U.S.C. §
1983, Plaintiff was confined in the Robertson Unit of the
Texas Department of Criminal Justice - Correctional
Institutions Division. Plaintiff was convicted of burglary of
a habitation with intent to commit theft and was sentenced to
99 years in prison.
alleges his right to due process and equal protection were
violated when he was reviewed for and denied parole.
Plaintiff contends he was discriminated against on the basis
of race and his writ writing activities. Plaintiff advises
two similarly situated Caucasian inmates, James Fox and
Kenneth Pace, with similar offenses were granted parole, but
Plaintiff, an Hispanic inmate, was not. According to
Plaintiff, he was reviewed for parole in 2009 and given a
five-year set-off. He was subsequently reviewed for parole in
2014 and given a four-year set-off.
complains he was not afforded a fair parole hearing interview
or notification of the parole panel's decision to deny
him parole in 2014. He further complains Parole Officer
Gabriel had no authority to conduct his parole interview in
2014. Plaintiff contends Gabriel acted with evil intent and
motivation to discriminate against him and deny Plaintiff
parole due to his race, writ writing activity and claim of
actual innocence. He also alleges Gabriel did not investigate
Plaintiff's proposed parole plan.
sues Governor Greg Abbott, former Chairperson of the Board of
Pardons and Paroles Rissie Owens, Parole Board Members David
Gutierrez, James LaFavers, Federico Rangel, Michelle Skyrme,
Fred Solis, and Cynthia Tauss, and Parole Commissioners
Marsha Moberley and Charles Shipman, and Parole Officer
Gabriel. He seeks a declaratory judgment, a preliminary and
permanent injunction, compensatory, nominal and punitive
damages, and costs.
consideration of Plaintiff's amended complaint, the Court
ordered service on all of the defendants except Governor Greg
Abbott. The served defendants move to dismiss Plaintiff's
complaint and argue there is no constitutional right to
parole release. They conclude Plaintiff has failed to allege
a valid procedural due process claim. With regard to
Plaintiff's equal protection claim the served defendants
argue Plaintiff has no constitutional expectancy of release
on parole and the Texas parole laws and guidelines do not
target a suspect class. Defendants further argue Plaintiff
failed to assert facts indicating Defendants Owens,
Gutierrez, LaFavers, Rangel, Skyrme, Solis, and Tauss were
personally involved in a constitutional deprivation.
Defendants also argue Owens, Gutierrez, LaFavers, Rangel,
Skyrme, Solis, Tauss, Moberley, and Shipman are entitled to
absolute immunity. To the extent the defendants are sued in
their official capacities for monetary damages, the
defendants assert their entitlement to Eleventh Amendment
immunity. The defendants also assert their entitlement to
consideration of Defendants' Motion to Dismiss, the Court
converted the motion to a motion for summary judgment and
allowed the parties the opportunity to present summary
judgment evidence. Defendants' summary judgment evidence
shows Plaintiff was reviewed for parole on October 12, 2009.
A parole panel, consisting of Thomas Leeper and Roy Garcia,
reviewed Plaintiff's case and determined he should be
denied parole and set his next review date for October 2014.
On September 29, 2014, a parole panel, consisting of Marsha
Moberley and Charles Shipman, reviewed Plaintiff's case
and determined he should be denied parole and set his next
review for September 2018. On August 8, 2016, Plaintiff's
case was placed in Special Review due to an administrative
processing error. On September 21, 2016, a parole panel
reviewed Plaintiff's case and determined he should be
denied parole and set his next review for September 2017.
Defendants assert the 2016 parole panel consisted of Moberley
and James LaFavers. However, the initials “ER” on
the parole minutes do not match Moberley's initials
“MM.” Regardless, it is clear Plaintiff was
denied parole on that date.
Standard Under 28 U.S.C. § 1915(e)
the Court did not order service on Governor Abbott, the Court
will analyze Plaintiff's claims brought against the
Governor pursuant to 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, ...