United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS
CIVIL RIGHTS COMPLAINT
ANN RENO, UNITED STATES MAGISTRATE JUDGE
GEORGE EDWARD FROSCH, acting pro se and while a prisoner
incarcerated in the Texas Department of Criminal Justice
(“TDCJ”), Correctional Institutional Division,
has filed suit pursuant to Title 42, United States Code,
Section 1983 complaining against the above-referenced
defendants and has been granted permission to proceed in
forma pauperis. For the following reasons, plaintiff's
civil rights complaint should be DISMISSED.
prisoner confined in any jail, prison, or other correctional
facility brings an action with respect to prison conditions
under any federal law, the Court may evaluate the complaint
and dismiss it without service of process, Ali v.
Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is
frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. §
1915A; 28 U.S.C. § 1915(e)(2). The same standards will
support dismissal of a suit brought under any federal law by
a prisoner confined in any jail, prison, or other
correctional facility, where such suit concerns prison
conditions. 42 U.S.C. § 1997e(c)(1). A Spears
hearing need not be conducted for every pro se
complaint. Wilson v. Barrientos, 926 F.2d 480, 483
n.4 (5th Cir. 1991).
Magistrate Judge has reviewed plaintiff's pleadings and
has viewed the facts alleged by plaintiff to determine if his
claim presents grounds for dismissal or should proceed to
answer by defendants.
seeks immediate release from custody through the approval of
his prior parole application.
sues defendants Marsha Moberly, Charles Shipman, and Jim
Lafavors (“the parole panel”), who are a TDCJ
Parole Board member and two TDCJ parole commissioners, for
the denial of his 2016 request for parole. Plaintiff's
sole basis for challenging the denial of parole is that the
parole panel is comprised of members located in Amarillo,
Texas, but plaintiff was housed on the Middleton Unit of TDCJ
at the time of his parole application, outside of the parole
panel's jurisdiction to render a decision on parole.
Thus, plaintiff argues only a parole panel comprised of
members located in the same geographic region where he was
housed at the time of the parole decision can decide his
parole suitability. However, plaintiff cites no authority for
the jurisdiction of a parole panel in Texas. Further,
plaintiff argues that the parole panel placed letters
concerning his litigation activity in his parole
consideration file. Plaintiff did not attach these
“letters” to his complaint but alleges that the
parole panel defendants wrote notes or “letters”
regarding past lawsuits filed by the plaintiff and put these
notations in his parole file for future reviewing panels to
see. Plaintiff appears to suggest that these
“letters” could affect his ability to secure
parole in the future. Thus, as a pro se plaintiff,
the Court will liberally construe these claims as a
retaliation claim, against his exercise of the right to
access the courts.
LAW AND ANALYSIS
plaintiff is requesting immediate release from custody
through parole as his sole relief, his claims are foreclosed
by Preiser v. Rodriguez, 411 U.S. 475 (1973).
Plaintiff must seek such relief through habeas. Wolff v.
McDonnell, 418 U.S. 538 (1973). However, this Court
notes that plaintiff previously filed suit in No.
2:12-CV-224-J-BB, also in the Northern District of Texas,
Amarillo Division. In that case, plaintiff sued these same
three defendants for a previous parole denial and was
admonished that such claims must be brought in a habeas
petition, yet plaintiff continued to pursue relief pursuant
to section 1983 in that case and again in this suit. The
propriety of pursuing section 1983 litigation without first
seeking habeas relief cannot be determined solely based on
relief nominally sought. See Johnson v. Hardy, 601
F.2d 172, 173 (5th Cir. 1979); see also Alexander v.
Ware, 714 F.2d 416, 419 (5th Cir. 1983). Thus, the Court
further considers plaintiff's claims.
claim that the parole board lacked jurisdiction to deny his
parole based on the locality of the parole board in question
lacks an arguable basis in law. Parole Board standards in
deciding parole applications are of concern only where
arbitrary action results in the denial of constitutionally
protected liberty or property interests. See Craft v.
Texas Board of Pardons and Paroles, 550 F.2d 1054 (5th
Cir. 1977). The expectancy of release upon parole is not such
an interest. See Shaw v. Briscoe, 5 ...