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Martinez v. Abbott

United States District Court, W.D. Texas, Austin Division

July 21, 2017

EDWARD LEE MARTINEZ #1253933
v.
GREG ABBOTT, et al.

          HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE 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.

         Before 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.

         STATEMENT OF THE CASE

         At the 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         After 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 qualified immunity.

         After 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.

         DISCUSSION AND ANALYSIS

         A. Standard Under 28 U.S.C. § 1915(e)

         Because 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, ...


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