United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
the Court are Plaintiff David Ramos's complaint, the
Motion to Dismiss filed by Defendants David Gutierrez and Roy
A. Garcia, Plaintiff's response, and Defendants'
reply. Plaintiff, proceeding pro se, filed his action in
state court, and Defendants removed it to this court.
OF THE CASE
time he filed his complaint, Plaintiff was confined in the
Ellis Unit of the Texas Department of Criminal Justice -
Correctional Institutions Division. Plaintiff is serving a
life sentence for a murder he committed on or about January
6, 1980. Plaintiff challenges his parole reviews. He asserts
he was first reviewed for parole on March 19, 1987, and
routinely received one to three-year set-offs until 2005. At
that time, Plaintiff received a four-year set-off. Plaintiff
received another four-year set-off in 2014. Plaintiff asserts
he will not be reviewed for parole again until March 2018.
Plaintiff alleges his parole reviews have violated his right
to due process and violate the Ex Post Facto Clause.
move to dismiss Plaintiff's complaint. They contend
Plaintiff's complaint is barred by the applicable statute
of limitations. They further contend Plaintiff has no
constitutional right to parole release and there has been no
violation of the Ex Post Facto Clause.
Standard of Review
Rule of Civil Procedure 8(a)(2) requires a complaint to
contain “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed.R.Civ.P. 8(a)(2). A motion under Federal Rule of Civil
Procedure 12(b)(6) asks a court to dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to
dismiss, the plaintiff must plead sufficient facts to state a
claim for relief that is facially plausible. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “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, 566 U.S. at 678. Although a plaintiff's
factual allegations need not establish that the defendant is
probably liable, they must establish more than a “sheer
possibility” a defendant has acted unlawfully.
Id. Determining plausibility is a
“context-specific task, ” and must be performed
in light of a court's “judicial experience and
common sense.” Id. at 679.
deciding a motion to dismiss under Rule 12(b)(6), a court
generally accepts as true all factual allegations contained
within the complaint. Leatherman v. Tarrant Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164
(1993). However, a court is not bound to accept legal
conclusions couched as factual allegations. Papasan v.
Allain, 478 U.S. 265, 286 (1986). Although all
reasonable inferences will be resolved in favor of the
plaintiff, the plaintiff must plead “specific facts,
not mere conclusory allegations.” Tuchman v. DSC
Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994).
In deciding a motion to dismiss, courts “must
consider” the complaint, as well as other sources such
as documents incorporated into the complaint by reference and
matters of which a court may take judicial notice.
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U.S. 308, 322 (2007).
Statute of Limitations
is no federal statute of limitations for § 1983 actions.
Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5
(5th Cir. 1995); Henson-El v. Rogers, 923 F.2d 51,
52 (5th Cir. 1991), cert. denied, 501 U.S. 1235
(1991). Therefore, the Supreme Court has directed federal
courts to borrow the forum state's general personal
injury limitations period. Owens v. Okure, 488 U.S.
235, 249-50 (1989). In Texas, the applicable limitations
period is two years. Moore v. McDonald, 30 F.3d 616,
620 (5th Cir. 1994) (citing Tex. Civ. Prac. & Rem. Code
Ann. § 16.003(a) (Vernon 1986)). Nevertheless, federal
law determines when a § 1983 cause of action accrues.
Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir .
1993). A cause of action under § 1983 accrues when the
aggrieved party knows, or has reason to know of, the injury
or damages which form the basis of the action.
Piotrowski, 51 F.3d at 516.
alleges he was denied parole and received a four-year set-off
in April 2014. Plaintiff did not execute his complaint until
May 17, 2017, more than two years after he had reason to know
of the injury which forms the basis of this action.
Accordingly, this action is time-barred. Alternatively,
Plaintiff's claims are without merit.
United States Constitution does not create a liberty interest
in parole. Greenholtz v. Inmates of Nebraska Penal &
Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law
makes parole discretionary and does not create a liberty
interest in parole that is protected by the Due Process
Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th
Cir. 1995); see also Johnson v. Rodriguez, 110 F.3d
299, 308 (5th Cir. 1997). Because Texas inmates have no
protected liberty interest in parole, they cannot have a
liberty interest in parole consideration or other aspects of
parole procedures. Johnson v. Rodriguez, 110 F.3d