United States District Court, W.D. Texas, Austin Division
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
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.
OF THE CASE
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.
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.
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,
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.
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.
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).
Standard Under Rule 12(c)
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.
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