IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

ROLANDO JERRY HERNANDEZ §

#927807 §

§

V. § A-20-CV-411-LY

§

BRYAN COLLIER §

and ANGELA NIKKI NATION §

REPORT AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

TO: THE HONORABLE LEE YEAKEL

UNITED STATES DISTRICT JUDGE

The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(f) of Appendix C of the Local Court. Before the Court

is Plaintiff’s complaint. Plaintiff, proceeding pro se, has been granted leave to proceed in forma

pauperis. 

 STATEMENT OF THE CASE

At the time he filed his complaint pursuant to 42 U.S.C. § 1983, Plaintiff was confined in the 

Rudd ISF Unit in Brownfield, Texas. On or about April 16, 2020, he was released after discharging

his sentence. 

Plaintiff was convicted of burglary of a habitation and placed on deferred adjudication for

ten years in February 2000. Two weeks later, the State filed a motion to adjudicate. In May 2000,

the trial court adjudicated Plaintiff guilty and sentenced him to 17 years in prison. Plaintiff

challenges the calculation of his sentence. He complains he was denied “flat time” credit for time

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spent in an ISF and in the county jail. He believes his sentence should have expired six months

earlier. He seeks damages for the extra time spent in prison. 

Plaintiff sues Bryan Collier, Executive Director of the Texas Department of Criminal Justice

- Correctional Institutions Division, and Angela “Nikki” Nation, Section Director for Parole Release

Processing and Records of the TDCJ - Paroles Division. Plaintiff alleges Nation provided her

affidavit in his state habeas corpus proceedings indicating Plaintiff was not entitled to “street time”

credit. Plaintiff argues Nation was incompetent and should have known he was challenging the

calculation of flat time, not street time. Plaintiff contends the Executive Director is responsible for

the actions of his subordinates. He seeks monetary damages. 

 DISCUSSION AND ANALYSIS

A. Standard Under 28 U.S.C. § 1915(e)

An in forma pauperis proceeding may be dismissed sua sponte under 28 U.S.C. § 1915(e)

if the court determines the complaint is frivolous, malicious, fails to state a claim upon which relief

may be granted or seeks monetary relief against a defendant who is immune from suit. A dismissal

for frivolousness or maliciousness may occur at any time, before or after service of process and

before or after the defendant’s answer. Green v. McKaskle, 788 F.2d 1116, 1119 (5th Cir. 1986). 

When reviewing a plaintiff’s complaint, the court must construe plaintiff’s allegations as

liberally as possible. Haines v. Kerner, 404 U.S. 519 (1972). However, the petitioner’s pro se status

does not offer him “an impenetrable shield, for one acting pro se has no license to harass others, clog

the judicial machinery with meritless litigation and abuse already overloaded court dockets.”

Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).

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B. Eleventh Amendment Immunity 

Being sued in their official capacities for monetary damages, Defendants are immune from

suit under the Eleventh Amendment because such an action is the same as a suit against the

sovereign. Pennhurst State School Hosp. v. Halderman, 465 U.S. 89 (1984). The Eleventh

Amendment generally divests federal courts of jurisdiction to entertain suits directed against states. 

Port Auth. Trans-Hudson v. Feeney, 495 U.S. 299, 304 (1990). The Eleventh Amendment may not

be evaded by suing state agencies or state employees in their official capacity because such an

indirect pleading remains in essence a claim upon the state treasury. Green v. State Bar of Texas,

27 F.3d 1083,1087 (5th Cir. 1994). 

C. Supervisory Liability

To the extent Plaintiff sues ExecutiveDirector Collier in his individual capacityPlaintiff fails

to allege he was personally involved in the calculation of his sentence. This failure is fatal to his

claims. See Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987);

see also Thompson v. Steele, 709 F.2d 381, 382 (5th Cir. 1983) (observing “[p]ersonal involvement

is an essential element of a civil rights cause of action”). “Supervisory officials are not liable under

§ 1983 for the actions of subordinates on any theory of vicarious liability”; they must have been

“personally involved in the alleged constitutional deprivation or have engaged in wrongful conduct

that is causally connected to the constitutional violation.” Turner v. Lt. Driver, 848 F.3d 678,

695–96 (5th Cir. 2017). 

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D. Heck v. Humphrey

Plaintiff’s claims are also barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) and the

Fifth Circuit’s application of Heck to state prisoner § 1983 lawsuits in Boyd v. Biggers, 31 F.3d 279

(5th Cir. 1994). In Heck, the Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused byactions whose unlawfulness would render

a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or

sentence has been reversed on 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.

In this case Plaintiff does not allege that his conviction or sentence has been reversed,

expunged, invalidated, or called into question by a federal court’s issuance of writ of habeas corpus. 

Plaintiff’s recitation of the procedural history in this case indicates just the opposite. Plaintiff

challenged the calculation of his sentence in a state habeas corpus application which was denied by

the Texas Court of Criminal Appeals on the findings of the trial court. Ex parte Hernandez, Appl.

No. WR-49,497-03.

RECOMMENDATION

It is therefore recommended that Plaintiff’s complaint be dismissed without prejudice as

frivolous pursuant to 28 U.S.C. § 1915(e). 

It is further recommended that the Court include within its judgment a provision expressly

and specifically warning Plaintiff that filing or pursuing any further frivolous lawsuits may result in

(a) the imposition of court costs pursuant to Section 1915(f); (b) the imposition of significant

monetary sanctions pursuant to Fed. R. Civ. P. 11; (c) the imposition of an order barring Plaintiff

from filing any lawsuits in this Court without first obtaining the permission from a District Judge

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of this Court or a Circuit Judge of the Fifth Circuit; or (d) the imposition of an order imposing some

combination of these sanctions. 

It is further recommended that Plaintiff be warned that if Plaintiff files more than three

actions or appeals while he is a prisoner which are dismissed as frivolous or malicious or for failure

to state a claim on which relief may be granted, then he will be prohibited from bringing any other

actions in forma pauperis unless he is in imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

In the event this Report and Recommendation is accepted, adopted or approved, it is 

recommended that the Court direct the Clerk to e-mail a copy of its order and judgment to the 

keeper of the three-strikes list. 

OBJECTIONS

Within 14 days after receipt of the magistrate judge’s report, any party may serve and file

written objections to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636

(b)(1)(c). Failure to file written objections to the proposed findings and recommendations contained

within this report within 14 days after service shall bar an aggrieved party from de novo review by

the district court of the proposed findings and recommendations and from appellate review of factual

findings accepted or adopted by the district court except on grounds of plain error or manifest

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injustice. Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc); Thomas

v. Arn, 474 U.S. 140, 148 (1985); Rodriguez v. Bowen, 857 F.2d 275, 276-277 (5th Cir. 1988).

SIGNED on April 21, 2020.

_____________________________________

MARK LANE

UNITED STATES MAGISTRATE JUDGE

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