1

A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see,

Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

JESSIE CHARLIE WILLIAMS, PRO SE, §

TDCJ-CID # 933740, §

§

Plaintiff, §

§

v. § 2:04-CV-0022

§

GERALD GARRETT, Chairman, T.B.P.P., §

§

Defendant. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff JESSIE CHARLIE WILLIAMS, acting pro se and while a prisoner

incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, has

filed suit pursuant to Title 42, United States Code, section 1983 complaining against the abovereferenced defendant and has been granted permission to proceed in forma pauperis

Plaintiff complains false or incorrect information contained in his parole file

resulted in the denial of parole. Plaintiff argues this is an unconstitutional procedure utilized by

the Board of Pardons and Paroles and requests injunctive relief to prevent a future denial based

on the same information.

JUDICIAL REVIEW

When a prisoner seeks redress from a governmental entity or officer or employee

of a governmental entity, the Court must evaluate the complaint and dismiss it without service of

process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous1

, malicious, fails to

 

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 2

Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted

to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as

frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson

questionnaire.").

 3

Exhibit B to plaintiff’s May 13, 2004, Briefing Order response.

4\04-0022.MOP 2

state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is

immune from such relief. 28 U.S.C. 1915A; 28 U.S.C. 1915(e)(2). The same standards will

support dismissal of a suit brought under any federal law by a prisoner confined in any jail,

prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C.

1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v.

Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991)2.

The District Judge has reviewed plaintiff's pleadings and has viewed the facts

alleged by plaintiff to determine if his claims present grounds for dismissal or should proceed to

answer by defendant.

THE LAW AND ANALYSIS

To provide more specific factual details of his claim, plaintiff has presented a

copy of the judgment3

 of conviction showing “no finding” as to a deadly weapon. Plaintiff also

states that, at his criminal trial, the State abandoned the allegation that he “injured complainant

by swinging at his head with a bottle, because there was no evidence to support it” and that it

was not included in the court’s charge. Of course, the trial is not the totality of the record before

the Parole Board and the absence of a deadly weapon finding upon conviction does not prove no

weapon was involved. Consequently, it is clear plaintiff has not alleged sufficient facts to

support a claim that the Parole Board relied upon false or erroneous information in denying his

parole.

 

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4\04-0022.MOP 3

Moreover, even if plaintiff’s facts are sufficient to state a claim that the Board

considers unreliable or false information in making parole determinations, without more, this

does not state a claim of constitutional dimension. Due Process Clause protections operate only

when challenged State procedures which may produce erroneous or unreliable results imperil a

protected liberty or property interest. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997)

(citing Olim v. Wakinekona, 461 U.S. 238, 250-251, 103 S.Ct. 1741, 1748, 75 L.Ed.2d 813

(1983). Since Texas prisoners have no protected liberty interest in parole, Due Process

protections do not apply to the procedures utilized in parole review; and prisoners cannot

challenge state parole review procedure on either procedural or substantive Due Process

grounds. Id. (citations omitted). The Fifth Circuit has clearly stated that “such concerns are

matters for the responsible state agencies and it is to those bodies that grievances concerning

parole procedures should be addressed.” Id. (citing Brandon v. D.C. Board of Parole, 823 F.2d

644 (D.C.Cir. 1987). Therefore, plaintiff’s claim lacks an arguable basis in law and is frivolous. 

Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

CONCLUSION

Pursuant to Title 28, United States Code, sections 1915A and 1915(e)(2), as well

as Title 42, United States Code, section 1997e(c)(1),

IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to

Title 42, United States Code, section 1983, by plaintiff JESSIE CHARLIE WILLIAMS be

DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A

CLAIM ON WHICH RELIEF CAN BE GRANTED.

 

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4\04-0022.MOP 4

LET JUDGMENT BE ENTERED ACCORDINGLY.

Any pending motions are DENIED.

The Clerk will mail a copy of this Order to the plaintiff and to any attorney of

record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General

Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711; and to the Pro Se Clerk at the

U.S. District Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED THIS 15TH DAY OF FEBRUARY 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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