Jordan v. Texas Dept of Criminal Justice et al, No. 4:2016cv03438 - Document 4 (S.D. Tex. 2016)

Court Description: MEMORANDUM OPINION AND ORDER granting 2 APPLICATION to Proceed In Forma Pauperis, dismissing without prejudice 1 Complaint. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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Jordan v. Texas Dept of Criminal Justice et al Doc. 4 United States District Court Southern District of Texas ENTERED December 02, 2016 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LARRY DONELL JORDAN, TDCJ #419295, § § § § § § § § § § § Plaintiff, v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE, et al., Defendants. David J. Bradley, Clerk CIVIL ACTION NO. H-16-3438 MEMORANDUM OPINION AND ORDER The plaintiff, Larry Donell Jordan (TDCJ #419295), is presently incarcerated in the Texas Department of Criminal Justice (~TDCJ"). - Correctional Institutions Division Prisoner Civil Rights Complaint under Jordan has filed a 42 U.S. C. § 1983 ("Complaint") (Docket Entry No. 1), challenging the revocation of his Because court is required to scrutinize the claims and dismiss the Complaint, in parole. whole or in part, plaintiff if it is incarcerated, determines that the the Complaint "is frivolous, malicious, or fails to state a claim upon which relief may be granted" or "seeks monetary relief from a defendant who is immune from such relief." 28 U.S. C. § 1915A (b) . After considering all of the pleadings the court concludes that this case should be dismissed for the reasons explained below. Dockets.Justia.com I. Jordan Beeville, is currently Texas. 1 Background confined at the Garza He sues TDCJ and Robin Abbott, serves as an assistant general counsel West Unit in who allegedly for the Texas Board of Pardons and Paroles. 2 Jordan contends that his parole was revoked improperly on May 23, 2016. 3 He appears to claim that Abbott wrongfully denied his appeal from that proceeding, or that he was denied the right to appeal, in violation of his right to due process. 4 Arguing that his parole should not have been revoked, Jordan requests injunctive relief in the form of an order setting aside the revocation and reopening his parole hearing. 5 II. Discussion Jordan appears to take issue with a particular decision that resulted in the revocation of his parole and his return to prison. It is well established that the writ of habeas corpus provides the exclusive remedy for prisoners challenging the "fact or duration" of confinement. Preiser v. Rodriguez, 93 S. Ct. 1827, 1841 (1973). By contrast, an action under 42 U.S.C. § 1 Complaint, Docket Entry No. 1, p. 3. 2 Id. at 3, 4. 3 Id. at 4. 4 Id. 5 Id. -2- 1983 is the appropriate legal vehicle to attack allegedly unconstitutional conditions of confinement. See Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). Because Jordan challenges the fact of his incarceration and not the conditions of his confinement, his due process claims are actionable, if at all, under the federal habeas corpus statutes, 28 U.S.C. § 2254, and not 42 U.S.C. 1841. Accordingly, the Complaint will be dismissed for failure to state a claim under § § 1983. See Preiser, 93 S. Ct. at 1983. III. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. The Prisoner's Civil Rights Complaint filed by 1) (Docket Entry No. is Larry Donell Jordan DISMISSED for failure to state a claim under 42 u.s.c. § 1983. The dismissal is without prejudice to re-filing his claims under 28 u.s.c. § 2254. 2. Jordan's motion for leave to proceed in pauperis (Docket Entry No. 2) is GRANTED. forma The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. SIGNED at Houston, Texas, on this 2nd day of December, 2016. UNITED STATES DISTRICT JUDGE -3-

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