Opinion
No. 4:02-CV-68-A
May 23, 2002
ORDER
Came on for consideration the above-captioned action wherein plaintiff, Sammy V. Houston, seeks relief pursuant to 42 U.S.C. § 1983. Upon further review of the pleadings, the court finds that the action should be dismissed pursuant to 28 U.S.C. § 1915 (e).
In his original complaint, plaintiff listed Jan Keith ("Keith"), Rick Barnett ("Barnett"), Ms. Waggoner ("Waggoner"), Texas Board of Pardons and Paroles, Tarrant County Prosecutor, Hood County Sheriff, and Texas Department of Public Safety, as defendants. Pursuant to its responsibility under 28 U.S.C. § 1915A(b), the court directed plaintiff to file an amended complaint alleging with particularity all material facts on which he contends he will establish his right to recover against each defendant and that includes detailed facts supporting the contention that the likely pleas of qualified immunity of defendants are not sustainable. On February 25, 2002, plaintiff filed a document titled "Answer to Said Court and Judge Order," (the "amended pleading") wherein he stated that he was suing Keith, Barnett, and Waggoner in their individual capacities only and that he was not suing any other defendant. Therefore, the court finds that Texas Board of Pardons and Paroles, Tarrant County Prosecutor, Hood County Sheriff, and Texas Department of Public Safety should be dismissed as defendants from this action.
Upon further review of plaintiff's pleadings the court finds that the action is frivolous and should be dismissed pursuant to 28 U.S.C. § 1915 (e). A claim is frivolous under section 1915(e) if it has no arguable basis in law or in fact. Denton v. Hernandez, 504 U.S. 25 (1992). Plaintiff alleges that state guidelines requiring completion of a sex offender program as a condition of parole are unconstitutional and that the individual plaintiffs played some role in enforcing or implementing those guidelines in his case. In particular he alleges that Keith, along with the parole board, imposed these new conditions. Keith appears to be a psychological counselor under contract to the state to conduct the particular sex offender program in which the plaintiff enrolled. By his amended pleading plaintiff alleges that Keith was responsible for sending him back to prison because she testified at the revocation hearing that he had not completed the sex offender program. He further alleges that Keith kicked him out of the program for non-payment of the required fees. Plaintiff's claims against Barnett and Waggoner, who appear to be his current or former parole officers, concern representations about whether he was required to complete that particular program or any program. The court finds that his allegations do not provide any arguable basis in law or fact for a section 1983 action against Keith, Barnett, and/or Waggoner. See. e.g., Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (affirming dismissal of parolee's ex post facto claim as frivolous).
Therefore,
The court ORDERS that plaintiff's claims be, and are hereby, dismissed pursuant to the authority of section 1915(e).