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Frosch v. Moberly

United States District Court, N.D. Texas, Amarillo Division

March 6, 2019

GEORGE EDWARD FROSCH, Plaintiff,
v.
MARSHA MOBERLY, et al., Defendants.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS CIVIL RIGHTS COMPLAINT

          LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I.

         JUDICIAL REVIEW

         When a 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[1], 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).[2]

         The 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.

         II.

         PLAINTIFF'S CLAIMS

         Plaintiff seeks immediate release from custody through the approval of his prior parole application.

         Plaintiff 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.

         III.

         THE LAW AND ANALYSIS

         As 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.

         Plaintiff's 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 ...


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