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Glendinning v. Texas Board of Pardons and Paroles

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

June 22, 2018

ROBERT W. GLENDINNING #620145
v.
TEXAS BOARD OF PARDONS AND PAROLES

          HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          MARK LANE UNITED STATES MAGISTRATE JUDGE

         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, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court is Plaintiff's complaint. Plaintiff is proceeding pro se and has been granted leave to proceed in forma pauperis.

         STATEMENT OF THE CASE

         At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was incarcerated in the Terrell Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. Plaintiff committed his crimes in 1991. Plaintiff contends the parole laws in effect at the time he committed his offense should be used to determine whether he should be released on parole. At that time, Plaintiff asserts he was to be reviewed for parole every year. Plaintiff complains the Parole Board applied new rules which increased the number of years between his parole reviews.

         Plaintiff names as the sole defendant the Texas Board of Pardons and Paroles. Plaintiff requests the Court to order the Parole Board to review Plaintiff for parole every year.

         DISCUSSION AND ANALYSIS

         A. Standard Under 28 U.S.C. § 1915(e)

         An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e) if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief against a defendant who is immune from suit. Even if a plaintiff paid the full filing fee for his case, his claims must be screened pursuant to 28 U.S.C. § 1915A. A dismissal for frivolousness or maliciousness may occur at any time, before or after service of process and before or after the defendant's answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986).

         When reviewing a plaintiff's complaint, the court must construe plaintiff's allegations as liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the plaintiff's pro se status does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation and abuse already overloaded court dockets.” Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

         B. Eleventh Amendment Immunity

         The Texas Board of Pardons and Paroles is immune from suit under the Eleventh Amendment. The Eleventh Amendment generally divests federal courts of jurisdiction to entertain suits directed against states. Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299, 304, 110 S.Ct. 1868, 1871 (1990). The Eleventh Amendment may not be evaded by suing state agencies or state employees in their official capacity because such an indirect pleading remains in essence a claim upon the state treasury. Green v. State Bar of Texas, 27 F.3d 1083, 1087 (5th Cir. 1994).

         Ordinarily, the Court would allow Plaintiff to file an amended complaint to name the appropriate state official in his official capacity as the defendant. However, as ...


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