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Dudley v. Thielke

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

November 16, 2017




         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.

         Before the Court are Plaintiff's complaint (Docket Entry “DE” 2-2); Plaintiff's Motion for Summary Judgment (DE 11); Plaintiff's Proposed Settlement and Supplement to his Motion for Summary Judgment (DE 12); Defendants' Response to Plaintiff's Motion for Summary Judgment (DE 13); Defendants' Motion for Judgment on the Pleadings (DE 14); and Plaintiff's request for preliminary injunction (DE 23). Plaintiff filed his original complaint in state court, and the defendants removed the action to this Court.


         At the time he filed his complaint, Plaintiff was confined in the Clements Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff challenges the 2015 revocation of his parole.

         Plaintiff alleges he was released to parole on November 15, 2012. At that time, Plaintiff had served 23 years on a 50-year sentence for attempted murder in Harris County, Texas. Plaintiff asserts he was released to the Super Intensive Supervision Program (“SISP”), which subjected him to restrictive conditions and GPS monitoring. He further alleges his parole certificate required that he register as a sex offender. Plaintiff's parole revocation proceedings are included in the state court records filed in his federal habeas corpus proceedings. See Dudley v. Davis, No. 4:15-CV-3410 (S.D. Tex. Sept. 30, 2016) (DE 10). Special conditions L, S, and SISP were imposed upon Plaintiff's release. L requires the maximum level of supervision. S requires participation in a substance treatment program. SISP requires participation in th Super Intensive Supervision Program. Neither Condition X (sex offender treatment) nor Condition M (sex offender registration) was imposed.

         During his release on parole, Plaintiff admits he was sent to an Intermediate Sanctions Facility (“ISF”) on multiple occasions for violating the conditions of his parole. After his third stay at an ISF, Plaintiff was released on February 20, 2015. On March 7, 2015, his parole officer, Jessica Kuhre, imposed a two-week home lockdown, because Plaintiff left his GPS monitor on the bus in which he had traveled. On March 9, 2015, Plaintiff indicates he sent a text message to Kuhre, expressing resentment for the lockdown sanction. The text message stated, “At this time, it feels good to say, you can give me a real good fucken, then get your hell out my life.” A revocation warrant for Plaintiff was issued the following day, and Plaintiff was transferred to Parole Officer Amy Kiel's caseload. Plaintiff was initially charged with sexual harassment, but the charge was later amended to harassment. Plaintiff was found guilty by Parole Hearing Officer Joel Butler. Plaintiff indicates he was revoked and returned to TDCJ on April 28, 2015.

         Plaintiff seeks his immediate release in addition to damages. Plaintiff sues Stuart Jenkins, Sandra Mims, Jessica Kuhre, Amy Kiel, and Joel Butler. To the extent Plaintiff sues Stuart Jenkins in his official capacity, Pamela Thielke, the acting Director of the Parole Division of the Texas Department of Criminal Justice, has been substituted.

         Plaintiff contends Defendants violated his First Amendment right to protected speech (his text message) and retaliated against him because of his speech. Plaintiff further contends the defendants violated his right to due process.

         Defendants move for a judgment on the pleadings. They contend habeas corpus relief is not an available remedy in a civil rights case. They further contend Plaintiff's claims for monetary damages are barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).


         A. Standard Under Rule 12(c)

         A court may hear a party's motion for judgment on the pleadings after the pleadings are closed. Fed.R.Civ.P. 12(c). The standard for deciding a Rule 12(c) motion is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim. Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 313 n. 8 (5th Cir. 2002).

         Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When considering a Rule 12(b)(6) motion to dismiss, a court must “accept the complaint's well-pleaded facts as true and view them in the light most favorable to the plaintiff.” Johnson v. Johnson, 385 F.3d 503, 529 (5th Cir. 2004). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations, ' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “a ...

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