Memorandum Opinion and Order - Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARVIN BROWN, §

§

Plaintiff, §

§

v. § Civil Action No. 3:06-CV-104-L

§

TEXAS BOARD OF PARDONS AND §

PAROLES, et. al., §

§

Defendants. §

MEMORANDUM OPINION AND ORDER

This is a pro se civil rights action brought under 42 U.S.C. § 1983 by Plaintiff Marvin

Brown

 (“Brown”) against the Texas Board of Pardons and Paroles (the “Board”) and its members.

Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof, this action was

referred to the United States magistrate judge for proposed findings and recommendation. On

January 23, 2007, the magistrate judge filed his Findings, Conclusions and Recommendation of the

United States Magistrate Judge (“Report”). Brown filed Plaintiff’s Objections to the Findings,

Conclusion, and Recommendation[] of the United States Magistrate Judge Concerning Plaintiff’s

Petition for Leave to Amend (“Objections”) on January 29, 2007. After making an independent

review of the pleadings, file and record in this case, and the magistrate judge’s Report, the court

determines that the magistrate judge’s findings are correct.

Brown, who was previously incarcerated on a violator’s warrant, filed his original complaint

on January 8, 2006, seeking monetary damages for pain and suffering as well as lost wages that he

contends resulted from the Board’s decision to revoke his mandatory supervision. The court issued

 

 Case 3:06-cv-00104-L Document 92 Filed 06/26/07 Page 1 of 4 PageID 632
Memorandum Opinion and Order - Page 2

an order on January 10, 2007, dismissing Brown’s complaint for failure to state a claim against the

Board and its members, who are entitled to absolute immunity. The court also dismissed all

unknown John Doe Defendants on October 27, 2006. Brown, therefore, had no valid claims

remaining against any defendants; however, on September 20, 2006, Brown filed Plaintiff’s Petition

for Leave to File an Amended Complaint. Brown’s amended complaint restates all of the claims in

his original complaint, but it also requests injunctive relief and adds Carlos Fierro, Director of

Specialized Services for the Pardons and Paroles Division, as a defendant. The court agrees with

the magistrate judge’s Report that Brown’s motion for leave to file an amended complaint should

be denied as futile.

Under Fed. R. Civ. P. 15(a), leave to amend should be “freely given” unless the amendment

fails to cure deficiencies, would be futile, or for other reasons in the exercise of the court’s

discretion. See Fed. R. Civ. P. 15; Foman v. Davis, 371 U.S. 178, 182 (1962). As the court

explained in its prior order of January 10, 2007, Board members are absolutely immune from suit

for their decisions to grant, deny, or revoke parole. Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir.

1995). Brown’s attempt, therefore, to impose individual liability on the Board members is barred

by the Eleventh Amendment. 

Brown also wishes to add Carlos Fierro as a defendant in this action for his conduct in

imposing monitored GPS tracking on Brown following his release. The court agrees with the

magistrate judge in that this claim is unrelated to Brown’s original complaint, which challenged the

Board’s discretion in revoking Brown’s mandatory supervision. By adding Carlos Fierro to this

action, Brown would not be amending his current claim so much as he would be adding a completely

new one, separate and distinct from that which he has already alleged. Even if the court allowed

 

 Case 3:06-cv-00104-L Document 92 Filed 06/26/07 Page 2 of 4 PageID 633
Memorandum Opinion and Order - Page 3

Brown to add this new claim, Fierro’s adjudicative determination to impose GPS monitoring on

Brown following his release is also covered by absolute immunity. See Id.; Littles v. Bd. of Pardons

& Parole Div., 68 F.3d 122, 122 (5th Cir. 1995). The court, therefore, determines that joining Fierro

as a defendant to this action would be futile and cause undue delay by adding an unrelated claim.

In his Objections, Brown cites multiple cases that allegedly support his motion to amend.

Most prominently, Brown argues that this court does not recognize the Supreme Court decision,

Wilkinson v. Dotson, wherein the Court permitted two prisoners who were denied parole to bring

a § 1983 civil action against the parole board for declaratory and injunctive relief. 544 U.S. 74

(2005). The court does recognize this decision, but finds Wilkinson inapplicable to the current case.

The Wilkinson Court held that prisoners who claim that parole procedures violate the Constitution

may bring an action under 42 U.S.C. § 1983 and do not have to seek relief exclusively under federal

habeas corpus statutes. Id. at 76. Here, the Report does not recommend dismissal because the

magistrate judge believes that Brown should bring a petition for habeas corpus. Instead, the

magistrate judge concludes, and the court agrees, that Brown has failed to allege any constitutional

violations or claims not barred by the Eleventh Amendment, such that allowing the amendment

would be futile.

Brown cites other cases in his Objections that are not on point to the issue here. For

example, Harlow v. Fitzgerald dealt with whether presidential aides were entitled to absolute

immunity. 457 U.S. 800 (1982). Anderson v. Creighton dealt with the qualified immunity of FBI

agents. 483 U.S. 635 (1987). Hernandez v. Texas Dep’t of Protective and Regulatory Servs. dealt

with the qualified immunity of social workers. 380 F.3d 872 (5th Cir. 2004). Papasan v. Allain

dealt with whether the distribution of school lands in Mississippi violated equal protection. 478 U.S.

 

 Case 3:06-cv-00104-L Document 92 Filed 06/26/07 Page 3 of 4 PageID 634
Memorandum Opinion and Order - Page 4

265 (1986). Because these cases do not address the absolute immunity of parole boards or parole

board members in the context of § 1983 actions, they are not relevant to the case at hand.

Accordingly, the magistrate judge’s findings are accepted as those of the court. Plaintiff’s

Objections to the Findings, Conclusions, and Recommendation, of the United States Magistrate

Judge Concerning Plaintiff’s Petition for Leave to Amend is overruled. Plaintiff’s Petition for

Leave to File an Amended Complaint is denied. Because the court has already dismissed Plaintiff’s

Original Complaint against Board members Bettina Jordan and all other unknown defendants, there

remains nothing left for disposition in this action. As such, Brown’s action is hereby dismissed

with prejudice.

It is so ordered this 26th day of June, 2007.

_________________________________

Sam A. Lindsay

United States District Judge

 

 Case 3:06-cv-00104-L Document 92 Filed 06/26/07 Page 4 of 4 PageID 635