United States District Court, W.D. Texas, Austin Division
ROBERT W. GLENDINNING #620145
TEXAS BOARD OF PARDONS AND PAROLES
HONORABLE ROBERT PITMAN UNITED STATES DISTRICT JUDGE
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
Texas, Local Rules for the Assignment of Duties to United
States Magistrate Judges.
the Court is Plaintiff's complaint. Plaintiff is
proceeding pro se and has been granted leave to proceed in
OF THE CASE
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
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.
Standard Under 28 U.S.C. § 1915(e)
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).
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).
Eleventh Amendment Immunity
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).
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 ...