Burgess v. Livingston et al, No. 4:2016cv03740 - Document 6 (S.D. Tex. 2017)

Court Description: MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 Complaint(Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

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Burgess v. Livingston et al Doc. 6 United States District Court Southern District of Texas ENTERED February 17, 2017 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION LEE G. BURGESS, TDCJ #468244, § § § § § § § § § Plaintiff, v. BRAD LIVINGSTON, et al., Defendants. David J. Bradley, Clerk CIVIL ACTION NO. H-16-3740 MEMORANDUM OPINION AND ORDER State inmate incarcerated by Lee the G. Burgess Texas (TDCJ Department #468244) of Correctional Institutions Division ("TDCJ"). Prisoner Civil ("Complaint") determination confinement. Rights (Docket by Complaint Entry parole Because No. officials Burgess is under 1) is Criminal Justice Burgess has filed a 42 u.s.c. challenging about presently the § an adverse duration incarcerated, the 1983 of court his is required to scrutinize the claims and dismiss the Complaint in whole or in part if it determines that 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 reviewing all of the pleadings, the court concludes that this case must be dismissed for the reasons explained below. Dockets.Justia.com I. Background Burgess is currently serving a 35-year prison sentence as the result of two convictions for aggravated robbery with a deadly weapon that were November 23, 1987. 1 entered against him in Brazoria County on Sometime after these convictions were entered, Burgess was granted early release from prison on the form of parole known as "mandatory supervision." 2 Burgess returned to prison on December 11, 2003, after he violated the terms of his supervised release. 3 Burgess Livingston, and/or former TDCJ Executive Director Brad Doe" defendants employed by TDCJ in the "time Burgess alleges that he was entitled to early release mandatory defendants" sues former TDCJ Director William Stephens, and two "John Jane section." 4 on now supervision incorrectly in October determined of his 2014, but eligibility that for "the early release and continued to detain him in prison for an additional ten months until August 24, 2015. 5 prison, Burgess, who has since returned to seeks declaratory relief and damages for ten months of 1 0ffender Information Detail, Texas Department of Criminal Justice, available at http://offender.tdcj.texas.gov (last visited February 10, 2017). 2 Complaint, Docket Entry No. 1, p. 4. 3 Id. 4 Id. at 3. -2- "false imprisonment" Constitution. 6 in violation The court concludes, of the however, United States that the Complaint must be dismissed for reasons discussed below. II. Burgess calls into Discussion question the correctness of the determination of his eligibility for early release on mandatory supervision in October of 2014. It is well established that a civil rights plaintiff may not recover damages based on allegations of "unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid," conviction or without sentence has first been proving that "reversed on the challenged direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus U.S.C. § 2254." [under] Heck v. Humphrey, 114 S. Ct. 2364, 2372 28 (1994). A claim for damages that bears a relationship to a conviction or sentence that has not been so invalidated is not cognizable under 42 U.S.C. § 1983. Id. Claims for declaratory or injunctive relief are similarly not cognizable in a § 1983 action until the relevant conviction or sentence has been reversed, expunged, or otherwise declared invalid 6 Id. at 4-5. -3- if a favorable judgment would "'necessarily imply'" the invalidity of the prisoner's confinement. 189 (5th Cir. 1998). Clarke v. Stalder, 154 F.3d 186, In other words, "a state prisoner's § 1983 action is barred (absent prior invalidation) - no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings) demonstrate Wilkinson v. the if success in that action would necessarily invalidity Dotson, 125 S. of confinement Ct. 1242, 1248 or its (2005) duration." (emphasis in original) . Burgess does not allege or show that he ever challenged the determination of his eligibility for supervised release or the calculation of his sentence in a state or federal habeas corpus proceeding, and there is no record of him having done so. Because Burgess does not demonstrate that the determination regarding his eligibility for early release was ever invalidated, Heck bars his Complaint. See McGrew v. Paroles, 47 F.3d 158, 160 (5th Cir. 1995) Texas Bd. the rule in of Pardons & (explaining that Heck is implicated by parole proceedings that call into question the fact and duration of confinement); Mendenhall v. Valdez, 372, 373 damages (5th Cir. 2010) under § 1983 376 F. App'x (holding that Heck precludes a suit for unless a prisoner can show that the determination regarding his eligibility for mandatory supervision has been invalidated) . For this reason, -4- Burgess's civil rights claims are not cognizable under 42 u.s.c. must be dismissed with prejudice. F.3d 423, 424 (5th Cir. 1996) § 1983, and his Complaint See Johnson v. McElveen, 101 (explaining that claims barred by Heck are "dismissed with prejudice to their being asserted again until the Heck conditions are met"). III. Based on the foregoing, Conclusion the court ORDERS that the Complaint filed by Lee G. Burgess (TDCJ #468244) is DISMISSED with prejudice as legally frivolous. The dismissal will count as a "strike" for purposes of 28 U.S.C. § 1915(g). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the plaintiff. copy (1} by regular the TDCJ - mail, facsimile The Clerk will also provide a transmission, Office of the General Counsel, or P.O. e-mail to: Box 13084, Austin, Texas 78711, Fax Number 512-936-2159; and (2} the Manager of the Three-Strikes List for the Southern District of Texas. SIGNED at Houston, Texas, on this 17th day of February, 2017. UNITED STATES DISTRICT JUDGE -5-

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