Opinion
5-22-CV-00882-OLG-RBF
08-15-2023
ARTURO GAITAN, Plaintiff, v. LINDA MOLINA, BOARD MEMBER, SUED IN THEIR PERSONAL CAPACITIES; CHUCK SPEIER, PAROLE COMMISSIONER, SUED IN THEIR PERSONAL CAPACITIES; AND ANTHONY RAMIREZ, PAROLE COMMISSIONER, SUED IN THEIR PERSONAL CAPACITIES; Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
RICHARD B. FARRER UNITED STATES MAGISTRATE JUDGE.
To the Honorable United States District Judge Orlando Garcia:
This Report and Recommendation concerns the Complaint filed in forma pauperis by pro se Plaintiff Arturo Gaitan, see Dkt. No. 4, and the Motion to Dismiss filed by Defendants Linda Molina and Chuck Speier, by and through the Office of the Attorney General of Texas, see Dkt. No. 10. All pretrial matters in this action have been referred for resolution, pursuant to Rules CV-72 and 1 of Appendix C to the Local Rules for the United States District Court for the Western District of Texas. See Dkt. No. 5. Authority to enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
For the reasons set forth below, it is recommended that the Complaint be DISMISSED pursuant to 28 U.S.C. § 1915(e). The Motion to Dismiss, Dkt. No. 10, should accordingly be DISMISSED AS MOOT.
Factual and Procedural Background
Pro se Plaintiff Arturo Gaitan filed his Application to Proceed in District Court without Prepaying Fees or Costs and proposed civil Complaint on August 4, 2022. See Dkt. No. 1. The Court granted the Application, and the Complaint was placed on the docket. See Dkt. No. 4 (Complaint).
Gaitan was formerly incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division. Defendant Linda Molina is employed by the Texas Board of Pardons and Paroles as a board member. Defendant Chuck Speier is employed by the Parole Board as a Commissioner. Defendant Anthony Ramirez, as alleged in the Complaint, is also employed by the Parole Board as a Commissioner. Construed liberally, the Complaint appears to bring a Fourteenth Amendment claim against Defendants via 42 U.S.C. § 1983. Gaitan argues that Defendants incorrectly interpreted Texas sentencing and parole statutes, most specifically Texas Government Code § 508.150. In applying that flawed interpretation to the calculation of his sentence and parole eligibility, he argues, Defendants violated his right to equal protection, and should be held personally liable. The Complaint requests as relief “[a] declaration that the acts and omissions described herein violated the plaintiff's right to equal treatment,” as well as millions of dollars in compensatory and punitive damages against each defendant. Compl. at 10.
The Complaint does not actually cite § 1983, but the Court has construed the equal protection claims as being brought via § 1983, in consideration of Gaitan's Pro se status.
Gaitan cites Texas Code of Criminal Procedure Article 42.18, section 8(d) (Vernon Supp. 1992), see Compl. at 3 n.4. This portion of the code of criminal procedure was later codified at Texas Government Code § 508.150.
Defendants Molina and Speier, by and through the Office of the Attorney General, filed their Motion to Dismiss on May 8, 2023. The motion notes that the Office of the Attorney General “has not yet obtained authorization to represent Anthony Ramirez,” without explaining why. But the motion states that the arguments set forth in the motion would apply equally to Ramirez, and urges that those claims too should be dismissed. See Mot. at 1 n.1. In fact, it is not clear if Ramirez was ever properly served. The Summons for Ramirez listed the same address for the San Antonio Board Office as that listed in the Summonses for Molina and Speier, and the Summons and Complaint were sent via certified mail. However, the return receipt filed with the Court is not signed, and a scanned copy of an envelope marked “return to sender” appears to have a typographical error in the address printed on the envelope. See Dkt. No. 11.
On June 13, 2023, the Court issued an Order directing Gaitan to respond to the Motion to Dismiss within twenty-one days of the Order, provided he wished the Court to consider the Motion with the benefit of a response. See Dkt. No. 14. The Court also warned Gaitan that although the Motion was only filed on behalf of Molina and Speier, the arguments made in the motion could also apply to Ramirez. Because a court may dismiss a case filed in forma pauperis at any time pursuant to 28 U.S.C. § 1915(e), the Court warned, a failure to respond to the Motion could ultimately result in the dismissal of the case as a whole. As of the date of this Report and Recommendation, Gaitan has not filed a response.
Analysis
Defendants' motion raises multiple theories to justify dismissal of the claims against them, including lack of personal jurisdiction due to insufficient process. Because Gaitan brought this action in forma pauperis, the Court ordered service by the U.S. Marshals. The address provided for each of the named defendants was the San Antonio Board Office. Although proof of service was filed as to Molina and Speier, along with certified mail receipts signed by an “A. Walker,” Defendants argue that the return receipt must be signed by the addressee under Texas law. They further contend that “[t]o the extent the acknowledgement of receipt might have been signed by someone else at the San Antonio Board Office, that person was not authorized to do so.” See Mot. at 5.
The proofs of service were placed on the docket after the Motion to Dismiss was filed. See Dkt. Nos. 11, 12 & 13. As already noted, signed certified mail receipts were filed for Molina and Speier, see Dkt. Nos. 12 and 13, but not for Ramirez, possibly due to a typo in the address as written on the envelope. See Dkt. No. 11 at 3.
It is not necessary to reach this issue, or to again order service by the U.S. Marshals Service requiring signatures by Defendants personally, because the Court can dismiss the Complaint, if appropriate, at any time pursuant to 29 U.S.C. § 1915(e). Upon consideration of the Complaint, as well as the issues raised in the Motion to Dismiss, the Court finds that each of the claims against each of the Defendants should be dismissed pursuant to § 1915(e). In each instance, the defendant either enjoys immunity from suit or Gaitan otherwise fails to state a non-frivolous claim on which relief may be granted.
A. Section 1915(e) Applies and Authorizes Dismissal in Appropriate Cases.
Pursuant to 28 U.S.C. § 1915(e), the Court is required to screen any civil complaint filed by a party proceeding in forma pauperis to determine whether the claims presented are: (1) frivolous or malicious; (2) fail to state a claim on which relief may be granted; or (3) seek monetary relief against a defendant enjoying immunity from such relief. See 28 U.S.C. § 1915(e)(2)(B). An action is frivolous where there is no arguable legal or factual basis for the claims. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in fact when it describes “fantastic or delusional scenarios.” Id. at 327-28.
In evaluating whether a complaint states a claim under § 1915(e)(2)(B), courts apply the same standards governing dismissals pursuant to Rule 12(b)(6). See DeMoss v. Crain, 636 F.3d 145, 152 (5th Cir. 2011). To avoid dismissal under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56, 570 (2007)). These factual allegations need not be highly detailed but “must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A conclusory complaint-one that fails to state material facts or merely recites the elements of a cause of action-may be dismissed for failure to state a claim. See id. at 555-56.
B. Gaitan's Personal-Capacity Claims Against Each Defendant Are Subject to Dismissal Due to Immunity.
Gaitan's Complaint brings claims against Defendants in their personal capacities, based on actions they took within their roles on the Parole Board. See Compl. at 2. In the Fifth Circuit, parole board members have absolute immunity from suits relating to their adjudicative actions as members of the board. Hulsey v. Owens, 63 F.3d 354, 356-57 (5th Cir. 1995); Walter v. Torres, 917 F.2d 1379, 1381 (5th Cir. 1990) (holding members of the Texas Board of Pardons and Paroles had “absolute immunity when applying their rules to particular cases because then they [were] acting as a quasi-judicial body.”). Gaitan's primary argument seems to be that Defendants applied statutes regarding the calculation of sentences and parole eligibility for a prisoner serving consecutive sentences in a way that treated him differently from other prisoners. But, as described more fully below, his argument actually comes down to a disagreement over statutory interpretation, rather than any specified accusation of unequal treatment, wrongdoing, or mistake on the part of Defendants.
Parole decisions relating to specific prisoners fall within the adjudicative function of the members of the parole board. See Torres, 917 F.2d at 1384; Hulsey, 63 F.3d at 357 (finding activities that are “part and parcel of the decision process” to revoke parole were entitled to absolute immunity). As such, Gaitan's personal-capacity Fourteenth Amendment claims against Defendants seeking monetary damages should be dismissed pursuant to § 1915(e)(2)(iii), because Gaitan does not allege any facts indicating that any Defendant's alleged wrongdoing was unrelated to adjudicative actions undertaken as a member of the parole board.
C. Gaitan Has Failed to State a Non-Frivolous Claim on Which Relief May be Granted.
There is no claim stated in the Complaint that survives § 1915(e) screening. Reading the Complaint generously, as the Court must do, Gaitan appears to allege a due process claim as well as the equal protection claims. The crux of these claims is his belief that parole officials misinterpreted and misapplied the statute governing calculation of his sentence or parole eligibility and that as a result he unnecessarily spent 17 years in prison. But the facts and arguments set forth by Gaitan do not amount to any cognizable claim, even accepting the factual allegations as true.
Gaitan primarily bases his arguments on Texas Code of Criminal Procedure, Article 42.18, Section 8(d), now codified at Texas Government Code § 508.150. Enacted in 1987, this provision applies to all offenses committed after its enactment. See Moore v. Owens, 361 Fed.Appx. 587, 589-90 (5th Cir. 2010) (providing historical overview of Tex. Gov't Code § 508.150). The relevant subsections (a)-(b) read in full:
(a) If an inmate is sentenced to consecutive felony sentences under Article 42.08, Code of Criminal Procedure, a parole panel shall designate during each sentence the date, if any, the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.
(b) For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:
(1) when the actual calendar time served by the inmate equals the sentence imposed by the court; or
(2) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence.
Initially, the Texas Department of Criminal Justice interpreted the provision to mean that once a prisoner became statutorily eligible for parole on a preceding sentence, the subsequent sentence automatically began to run. Moore, 361 Fed.Appx. at 589 (citing Ex parte Wickware, 853 S.W.2d 571, 573 n.1 (Tex. Crim. App. 1993)). It is this initial interpretation that undergirds Gaitan's claims. Under this approach, as Gaitan sees it, he would have become eligible for parole on his first 30-year sentence after serving 25 percent of the total sentence, amounting to 7.5 years. And at that point he would have then automatically triggered his second 5-year sentence.
But this interpretation is no longer valid, as of 1997. According to the valid post-1997 interpretation of the statute, a prisoner's first sentence ceases to operate not when the prisoner is statutorily eligible for parole but rather when the prisoner is eligible for release on parole. Id. at 590. Accordingly, as of 1997 a preceding sentence only ceases to operate under subsection (b)(2) once a prisoner is actually granted parole on that sentence. Id. (citing Ex parte Kuester, 21 S.W.3d 264, 270 (Tex. Crim. App. 2000), overruled on other grounds, Ex parte Hale, 117 S.W.3d 866 (Tex. Crim. App. 2003)). And as with parole in general, the parole board's decision regarding whether to grant or deny parole is discretionary. Ex parte Kuester, 21 S.W.3d at 270; Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).
Texas courts have endorsed this corrected application of § 508.150. See, e.g., Ex parte Kuester, 21 S.W.3d at 270; Cain v. Tex. Bd. of Pardons & Paroles, 104 S.W.3d 215, 218 (Tex. App.-Austin 2003, no pet.); Byrd v. State, 499 S.W.3d 443, 447-48 (Tex. Crim. App. 2016). The Fifth Circuit in Moore also held that applying the corrected interpretation to post-1987 but pre-1997 offenses-like Gaitan's-does not violate the Ex Post Facto Clause of the Constitution, because doing so merely enforces a law in place since 1987. See Moore, 361 Fed.Appx. at 590-91; see also Thomley v. Stephens, No. 3:13-CV-309, 2016 WL 1644378, at *4 (S.D. Tex. Apr. 21, 2016).
1. Gaitan has failed to state a due process claim. In light of the background provided above, Gaitan's claims are premised on an incorrect interpretation of the law. There is no Texas statute mandating that Gaitan's first sentence automatically ceased to operate after 7.5 years. Moreover, the claims additionally fail as a matter of law if premised on due process because Texas parole statutes do not confer a constitutionally protected liberty interest. See Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Mayabb v. Johnson, 168 F.3d 863, 871 (5th Cir. 1999); Madison, 104 F.3d at 768 (“In Texas, it is entirely speculative whether an inmate will actually obtain parole, inasmuch as there is no right to be released on parole.”). Nor is this the first time Gaitan has unsuccessfully brought this argument to the Courts. See Gaitan v. Lumpkin, No. 2:20-CV-281, 2020 WL 9211206, at *2 (S.D. Tex. Dec. 4, 2020), report and recommendation adopted, No. 2:20-CV-281, 2021 WL 824863 (S.D. Tex. Mar. 4, 2021) (recommending dismissal of habeas petition, rejecting Gaitan's proposed interpretation of the statute, and finding “an assertion that he was or is being improperly denied parole does not implicate due process or provide a basis for federal habeas corpus relief”); Gaitan v. Lumpkin, No. 2:20-CV-281, 2021 WL 824863, at *2 (S.D. Tex. Mar. 4, 2021) (accepting memorandum and recommendation and rejecting ex post facto argument and separation of powers argument raised for first time in objections).
2. Gaitan has failed to state an equal protection claim. The main thrust of Gaitan's Complaint is a claim that the current interpretation of the statute violates his right to equal protection under the law. Gaitan accordingly argues as follows:
the equal protection clause requires the Legislature to literally stop operating without further existence a prisoner's preceding sentence under subsection (B) of
§ 8(d)(2) [now subsection (2) of § 508.150(b)], the same as the Legislature literally stop operating without further existence a preceding 2-year sentence under subsection (A) of § 8(d)(2) [now subsection (1) of § 508.150(b)].Compl. at 3-4 (emphasis omitted). The Court understands this argument as follows: under applicable law, prisoners with certain types of convictions are not eligible for parole in less than two years. If the total sentence in such a case were two years, such a prisoner would never become eligible for parole. But when such a two-year sentence is followed by another sentence, the initial two-year sentence automatically ceases after two years under § 508.150(b)(1), and the next sentence would then begin to run. Gaitan argues he was not treated equally to such a prisoner because Defendants would “literally stop operating without further existence a preceding 2-year sentence under subsection A [now subsection (1)] for prisoners convicted a second degree felony offense . . . while the defendants did not” do the same for Gaitan's preceding 30-year sentence by ceasing its operation immediately upon the date he was statutorily eligible for parole on that 30-year sentence. See Compl. at 9.
Gaitan cites the Texas Code of Criminal Procedure, Article 42.18, Section 8(b)(3) (1992), which was evidently in operation at the time he was sentenced. See Lumpkin, 2020 WL 9211206, at *1, *2 n.4. Under that section, prisoners serving a sentence for so-called “3(g) offenses” were eligible for parole after serving one-fourth of the maximum sentence or 15 years, whichever was less, but in no event earlier than two years.
The facts as alleged do not state an equal protection claim, whether Gaitan is challenging the law itself or specific actions taken by Defendants. First, Gatian's argument fails under its own (flawed) terms. If he were treated identically to the hypothetical prisoner with the 2-year sentence under subsection (b)(1), as he urges should have been the case, he would then have needed to serve the entire “actual calendar time” of his 30-year sentence before his second sentence could have automatically begun to run. Even Gaitan would not favor that outcome.
Second, Gaitan's conclusory statements of unequal treatment do not amount to a cognizable equal protection claim. See Rountree v. Dyson, 892 F.3d 681, 685 (5th Cir. 2018); Clark v. Owens, 371 F. App'x. 553, 554 (5th Cir. 2010) (noting “conclusory assertions” of differential treatment are insufficient to state equal protection claim). He also does not allege facts setting forth any discrimination on an invidious or purposeful basis. See, e.g., Rountree, 892 F.3d at 684-85 & n.10 (providing that “class of one” equal protection claim requires allegations of intentional treatment different from those similarly situated and without any rational basis). Nor does he explain how the statute as interpreted and applied to him resulted in unequal treatment as compared to any specific similarly situated prisoners in a manner that would violate the Fourteenth Amendment. Id. (“An allegation that others are treated differently, without more, is merely a legal conclusion that we are not required to credit.”) A law does not violate equal protection guarantees merely because it distinguishes between different types of crimes. See Mayabb, 168 F.3d at 870 (finding equal protection claim lacked merit where plaintiff did not show that the “Texas legislature intended to cause any adverse effects on any identifiable group when it amended the parole laws” without making the amendments retroactive); Ruiz v. Morales, 9 F.3d 103 (5th Cir. 1993) (unpublished) (per curiam) (“appellants' apparent equal protection challenge to the [Texas parole law] is of no moment, because the law does not discriminate on any purposeful or invidious basis.”).
D. Amendment Would Be Futile.
Generally, a court will provide a Pro se plaintiff an opportunity to amend the complaint before dismissing it for failure to state a claim. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam). But if the legal theory upon which a complaint relies is “‘indisputably meritless,'” an opportunity to amend is not necessary. Eason v. Thaler, 14 F.3d 8, 9 n.5 (5th Cir. 1994) (quoting Neitzke, 490 U.S. at 327-28). Here, amendment would be futile because Gaitan's claims all boil down to his mistaken belief that his preferred interpretation of the parole statute is correct and the state's interpretation is wrong. The District Court in the Southern District of Texas previously rejected this argument, and Texas courts have continually accepted the post-1997 interpretation of the relevant statute that cannot be squared with Gaitan's arguments. Even if Gaitan were to provide more details about the circumstances surrounding the parole board's actual decision regarding his eligibility for release on parole, those details could not possibly change the outcome here, for all the reasons discussed at length above. The legal theories underpinning Gaitan's claims are “indisputably meritless,” and amending the complaint would be futile.
Conclusion and Recommendation
For the reasons discussed above, it is recommended that the Complaint, Dkt. No. 4, be DISMISSED in its entirety. The Motion to Dismiss, Dkt. No. 10, should therefore be DISMISSED AS MOOT.
IT IS ORDERED that the Clerk shall send a copy of this Report and Recommendation to Plaintiff by regular mail, and certified mail, return receipt requested.
Having considered and acted upon all matters for which the above-entitled and numbered case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt requested, to those not registered. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections, responses, and replies must comply with the same page limits as other filings, unless otherwise excused by the district court's standing orders. See Rule CV-7. The objecting party shall file the objections with the clerk of the court, and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions, or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusory, or general objections. A party's failure to file written objections to the proposed findings, conclusions, and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to timely file written objections to the proposed findings, conclusions, and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.