United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
ROSENTHAL CHIEF UNITED STATES DISTRICT JUDGE
plaintiff, Pamela Diann Wilburn-Hawkins (also known as Pamela
Diann Wilburn), is a former state inmate who is presently on
supervised release. Wilburn-Hawkins has filed a civil rights
complaint under 42 U.S.C. § 1983, seeking monetary
damages from the Texas Department of Criminal Justice (TDCJ)
Parole Division and three parole officials. She is
representing herself and has been granted leave to proceed
without prepaying the filing fee. She asks the court to
court is required to review pleadings by litigants proceeding
without prepaying filing fees and to dismiss any part of the
complaint that is frivolous, malicious, fails to state a
claim on which relief may be granted, or seeks monetary
relief from a defendant who is immune from that relief.
See 28 U.S.C. § 1915(e)(2)(B). Based on this
required review, the court concludes that Wilburn-Hawkins has
not stated a basis to appoint counsel and has not stated a
basis on which relief could be granted. Her § 1983
complaint is dismissed and her motion for counsel denied.
Final judgment is separately entered. The reasons are
August 22, 2007, Wilburn-Hawkins was convicted of theft and
sentenced to a 20-year prison term. (Harris County Cause
Number 692000.). That conviction was affirmed on appeal.
See Wilburn v. State, No. 01-07-00830-CR, 2008 WL
2611933 (Tex. App.-Houston [1st Dist.] July 3, 2008, pet. ref
d). She filed unsuccessful federal habeas corpus actions
seeking relief from her conviction and sentence. See
Wilburn v. Stephens, Civil No. 4:13-cv-3414 (S.D. Tex.
2014) (dismissing the petition as successive); Wilburn v.
Thaler, Civil No. 6:13-cv-0094 (W.D. Tex. 2013)
(dismissing the petition as barred by limitations); see
also Wilburn v. Thaler, CivilNo. 6:13-cv-0093 (W.D. Tex.
2014) (challenging the denial of release on parole).
January 31, 2014, Wilburn-Hawkins was released from prison to
parole, subj ect to certain conditions of supervised
release. In particular, Special Condition C
prohibited Wilburn-Hawkins from participating in certain
financial transactions. Special Condition I required her to
notify a prospective employer about her criminal history if a
position of financial responsibility is
sued the TDCJ Parole Division and three parole officials
located in Houston: Assistant Regional Director Michael
Donaldson; Office Supervisor Anthony L. Phillips; and
Supervising Parole Officer Shallneal Williams.
Wilburn-Hawkins alleges that Phillips ordered her to shut
down a nonprofit charitable organization that she had
established. She alleges that he also ordered her to remove
her name from bank accounts listing her as the sole
proprietor of a business, "P.S. Hawkins and Associates
Company, " previously doing business as "P.S.
Hawkins and Associates Inc., " which she had purportedly
operated since 2005. In May 2016, Wilburn-Hawkins was told that
her parole would be revoked for violating Special Condition C
if she did not comply as directed. When Wilburn-Hawkins asked
Williams to remove Special Condition C, Williams replied that
she did not have authority to withdraw a condition imposed by
the Texas Board of Pardons and Paroles.
alleges that Phillips and Williams, her supervising parole
officers, violated the Fourteenth Amendment to the United
States Constitution by depriving her of the right to earn a
living without due process. Wilburn-Hawkins claims that she
lost income, her business, and her home as a result of the
restrictions Phillips and Williams imposed under Special
Condition C. She also suffered "chronic stress,
" which she alleges triggered a heart attack and an
aneurysm in November 2016. Wilburn-Hawkins blames the
Officer Supervisor Phillips and Assistant Regional Director
Donaldson for failing to adequately supervise or enforce the
conditions imposed on her parole. Wilburn-Hawkins seeks $4,
900, 000.00 in compensatory damages, plus $300, 000.00 in
punitive damages for these alleged civil rights
is representing herself. Complaints filed by self-represented
plaintiffs are liberally construed and, "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) (internal quotation
marks and citation omitted). But any complaint "must be
plausible on its face based on factual content that allows
the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged." Whitaker v.
Collier, 862 F.3d 490, 497 (5th Cir. 2017) (internal
quotation marks and citations omitted). "A complaint is
frivolous if it lacks an arguable basis in law or fact or if
there is no realistic chance of ultimate success."
Henthorn v. Swinson, 955 F.2d 351, 352 (5th Cir.
1992) (citation omitted).
does not state an actionable claim against the TDCJ Parole
Division because, as a matter of law, the Eleventh Amendment
bars her suit for monetary damages under 42 U.S.C. §
1983 against the Texas Board of Pardon and Paroles, a state
agency. See Martinez v. Texas Dep't of Criminal
Justice, 300 F.3d 567, 573 (5th Cir. 2002); see also
McGrew v. Texas Bd. of Pardons and Paroles, 47 F.3d 158,
161 (5th Cir. 1995) ("The Texas Board of Pardon and
Paroles, a division of the Texas Department of Criminal
Justice, is cloaked with Eleventh Amendment immunity.").
The Eleventh Amendment also bars her claim for money damages
under § 1983 from state employees in their official
capacity. See Oliver v. Scott, 276 F.3d 736, 742
(5th Cir. 2002); Aguilar v. Texas Dep't of Criminal
Justice, 160F.3d 1052, 1054 (5th Cir. 1998).
cannot otherwise recover damages because her allegations are
based on the enforcement of the parole conditions that were
part of her sentence. To 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 § 1983 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
determination, 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). This rule applies to claims about the
fact, duration, or conditions of parole. See Littles v.
Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th
Cir. 1995); see also Jackson v. Vannoy, 49 F.3d 175,
177 (5th Cir. 1995).
claims would, if true, mean that the conditions on her
supervised release were invalid. Those conditions of release
are part of her sentence. See, e.g., Williams v.
Wisconsin, 336 F.3d 576, 579-80 (7th Cir. 2003)
(conditions of parole "define the perimeters" of
confinement and challenges are not actionable, but not §
1983). Wilburn-Hawkins does not allege facts showing that she
successfully challenged the conditions of her parole or that
the decision by parole officials to impose restrictions on
her supervised release has been set aside or invalidated. A
damages claim based on a criminal sentence that remains
standing and has not been invalidated cannot proceed under42
U.S.C. § 1983. See Heck, 5l2U.S.at487;see also
Savickas v. Walker, 180 Fed.Appx.592, 594 (7th Cir.
2006) (affirming the dismissal of a § 1983 challenge to
a condition of parole as barred by Heck).
Wilburn-Hawkins's complaint must be dismissed with
prejudice as legally frivolous. See Johnson v.
McElveen, 101 F.3d423, 424(5thCir. 1996) (claims barred
by Heck are "dismissed with prejudice to their
being asserted again until the Heck conditions are
met"); Hamilton v. Lyons, 74 F.3d 99, 102-03
(5th Cir. 1996) ("A § 1983 claim which falls under
the rule in Heck is legally frivolous unless the
conviction or sentence at issue has been reversed, expunged,
invalidated, or otherwise called into question.").