United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS, JR. UNITED STATES DISTRICT JUDGE
Ervin Lee McFerrin (TDCJ #01607758), an inmate in the custody
of the Texas Department of Criminal Justice - Correctional
Institutions Division ("TDCJ"), has filed a pro
se civil rights complaint under 42 U.S.C. § 1983
(Dkt. 1). After reviewing the pleadings, the Court concludes
that this case must be dismissed for the
reasons that follow.
is currently serving a 10-year sentence for possession of
cocaine in a drug-free zone. His civil rights complaint seeks
his release to either mandatory supervision or parole, as
well as monetary damages against the various defendants (Dkt.
1 at pp. 4, 14-16). McFerrin alleges that he has been
improperly denied release under Texas's mandatory
supervision and parole statutes (Dkt. 1 at pp. 4, 14-16).
STANDARD OF REVIEW
complaint in this case is governed by the Prison Litigation
Reform Act (the "PLRA"). Upon initial screening of
a prisoner civil rights complaint, the PLRA requires a
district court to scrutinize the claims and dismiss the
complaint, in whole or in part, if it determines that the
complaint "is frivolous, malicious, or fails to state a
claim upon which relief may be granted;" or "seeks
monetary relief from a defendant who is immune from such
relief." 28 U.S.C. § 1915A(b). A reviewing court
may dismiss a complaint for these same reasons "at any
time" where a party, like McFerrin, proceeds in
forma pauperis. 28 U.S.C. § 1915(e)(2)(B)
(mandating dismissal where the complaint is "frivolous
or malicious, " "fails to state a claim upon which
relief may be granted, " or "seeks monetary relief
from a defendant who is immune from such relief). The PLRA
also provides that the court "shall on its own motion or
on the motion of a party dismiss an action" if it is
satisfied that the complaint is "frivolous, malicious,
fails to state a claim upon which relief can be granted, or
seeks monetary relief from a defendant who is immune from
such relief." 42 U.S.C. § 1997e(c).
proceeds pro se in this case. Courts construe
pleadings filed by pro se litigants under a less
stringent standard of review. Haines v. Kerner, 404
U.S. 519 (1972) (per curiam). Under this standard, "[a]
document filed pro se is 'to be liberally
construed, ' Estelle [v. Gamble, 429
U.S. 97, 106 (1976)], and 'a pro se complaint,
however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by
lawyers.'" Erickson v. Pardus, 551 U.S. 89,
94 (2007). Nevertheless, "[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (observing that courts
"are not bound to accept as true a legal conclusion
couched as a factual allegation"). The Supreme Court has
clarified that "a complaint must contain sufficient
factual matter, accepted as true, to 'state a claim to
relief that is plausible on its face.'"
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at
THE HECK RULE
seeks his immediate release from confinement and monetary
damages stemming from an alleged denial of due process. In
other words, he seeks to demonstrate the invalidity of his
confinement, both directly (through an injunction compelling
immediate release) and indirectly (through a judgment for
damages that would necessarily imply the unlawfulness of his
confinement). McFerrin does not allege or show that his
sentence has been invalidated or otherwise set aside by an
authorized state tribunal or by a federal habeas corpus
proceeding under 28 U.S.C. § 2254.
recover damages based on allegations of
"unconstitutional conviction or imprisonment, or for
other harm caused by actions whose unlawfulness would render
a conviction or sentence invalid, a [civil rights] 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
determinations, or called into question by a federal
court's issuance of a writ of habeas corpus [under] 28
U.S.C. § 2254." Heck v. Humphrey, 512 U.S.
477, 486-87 (1994). A claim for damages that bears a
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under 42 U.S.C. § 1983.
Id. Therefore, if a judgment in favor of the
plaintiff would "necessarily imply the invalidity of his
conviction or sentence, " then the complaint must be
dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.
Id. The rule laid down in Heck applies not
only to claims for monetary damages but also to claims for
declaratory and injunctive relief. See Clarke v.
Stalder, 154 F.3d 186, 190-91 (5th Cir. 1998). The
Supreme Court has unequivocally stated that "a state
prisoner's §1983 action is barred (absent prior
invalidation)-no matter the relief sought (damages or
equitable relief), no matter the target of the prisoner's
suit (state conduct leading to conviction or internal prison
proceedings)-if success in that action would necessarily
demonstrate the invalidity of confinement or its
duration." Wilkinson v. Dotson, 544 U.S. 74,
81-82 (2005) (emphasis removed).
follows that McFerrin's civil rights claims are not
cognizable under 42 U.S.C. § 1983 at this time and that
his complaint must be dismissed. The dismissal of the claims
for monetary damages will be with prejudice until the
Heck conditions are met. Johnson v.
McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (explaining
that claims barred by Heck are "dismissed with
prejudice to their being asserted again until the
Heck conditions are met"). The claims for
injunctive relief will be dismissed without prejudice.
Id.; Clarke, 154F.3dat 191.
CONSTRUCTION OF MCFERRIN'S CLAIMS AS HABEAS
Court notes that it will not construe McFerrin's Section
1983 claims as claims for habeas relief. There is no
indication in either public records or McFerrin's
pleadings that McFerrin has properly exhausted his
state-court remedies. See 28 U.S.C. § 2254(b).
In any event, McFerrin has not stated a cognizable claim to
federal habeas relief. "[B]ecause [McFerrin] has no
liberty interest in obtaining parole in Texas, he cannot
complain of the constitutionality of procedural devices
attendant to parole decisions." Orellana v.
Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). The Due Process
Clause does not include a right to conditional release before
the expiration of a valid sentence, and the Texas parole
statutes do not create a Constitutionally protected liberty
interest because parole in Texas is entirely discretionary.
Id.; see also Greenholtz v. Inmates of the Neb. Penal
& Correctional Complex, 442 U.S. 1, 7 (1979);
Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir.
2007). Moreover, McFerrin cannot complain about denial of his
release to mandatory supervision because he is not eligible
for release to mandatory supervision, see Tex.
Gov't Code § 508.149(a)(14), as McFerrin's own
classification paperwork confirms (Dkt. 1 at