1

 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). 

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

JOHN KEVIN KOTHMANN §

§

Plaintiff, §

§

VS. § NO. 3-06-CV-0128-M 

§

TEXAS BOARD OF PARDONS §

AND PAROLES, ET AL. §

§

Defendants. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. §

636(b) and a standing order of reference from the district court. The findings and recommendation

of the magistrate judge are as follow:

I.

This is a pro se prisoner civil rights action brought by John Kevin Kothmann, an inmate in

the TDCJ-ID, against the Texas Board of Pardons and Parole and various parole officials. On

January 19, 2006, plaintiff tendered a complaint to the district clerk and filed an application to

proceed in forma pauperis. Because the information provided by plaintiff in his pauper's affidavit

indicates that he lacks the funds necessary to prosecute this case, the court granted leave to proceed

in forma pauperis and allowed the complaint to be filed. A Spears1

 questionnaire then was sent to

plaintiff in order to obtain additional information about the factual basis of this suit. Plaintiff

answered the questionnaire on February 6, 2006. The court now determines that this case should

be summarily dismissed under 28 U.S.C. § 1915(e)(2). 

 

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II.

Plaintiff was twice released to mandatory supervision after serving part of a 10-year sentence

for an unspecified criminal offense. Both times his mandatory supervision was revoked for technical

violations and petitioner was returned to custody without credit on his sentence for the time spent

on release. Plaintiff also lost accumulated work and good time credits. In this action, plaintiff seeks

money damages, injunctive relief, and immediate release from custody due to the wrongful actions

of parole officials in revoking his mandatory supervision and calculating his sentence credits.

A.

A district court may summarily dismiss a complaint filed in forma pauperis if it concludes

that the action:

(1) is frivolous or malicious;

(2) fails to state a claim upon which relief can be granted; or

(3) seeks money relief against a defendant who is immune from

such relief. 

28 U.S.C. § 1915(e)(2)(B). An action is frivolous if it lacks an arguable basis in either law or fact.

Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989); HensonEl v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint fails to

state a claim "if it is clear that no relief could be granted under any set of facts that could be proved

consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232,

81 L.Ed.2d 59 (1984). The court must assume that the facts set forth in the complaint are true. See

Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164,

113 S.Ct. 1160, 1161, 122 L.Ed.2d 517 (1993). However, dismissal is proper where "even the most

 

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2

 In Wilkinson v. Dotson, 544 U.S. 74, 125 S.Ct. 1242, 161 L.Ed.2d 253 (2005), the Supreme Court held that

prisoners could challenge the constitutionality of state parole procedures in a civil rights action seeking declaratory and

injunctive relief under 42 U.S.C. § 1983 without satisfying the requirements of Heck. However, unlike the prisoners in

Wilkinson, plaintiff does not challenge the constitutionality of the Texas parole procedures. Nor does he seek a

declaratory judgment or an injunction that would require the state to give him a new revocation hearing under different

procedures or to comply with constitutional due process in the future. See Wilkinson, 125 S.Ct. at 1245. Rather, plaintiff

seeks an injunction that will result in his immediate release from custody, as well as money damages, due to the

revocation of his mandatory supervision. Such claims must be presented in an application for writ of habeas corpus.

sympathetic reading of [the] pleadings uncovers no theory and no facts that would subject the

present defendants to liability." Jacquez v. Procunier, 801 F.2d 789, 791-92 (5th Cir. 1986).

B.

A party may not maintain a civil rights action based on the legality of a prior criminal

proceeding unless a state court or federal habeas court has determined that the terms of confinement

are in fact invalid. Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383

(1994). The critical inquiry is whether a judgment in favor of the plaintiff would "necessarily imply

the invalidity of his conviction or sentence." Id., 114 S.Ct. at 2372. If so, the claim is barred unless

the conviction has been reversed or declared invalid. Id.; Hainze v. Richards, 207 F.3d 795, 798 (5th

Cir.), cert. denied, 121 S.Ct. 384 (2000). This rule applies to parole revocations and claims

involving the denial of sentence credits. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584,

1589, 137 L.Ed.2d 906 (1997) (Heck bars civil rights claims based on deprivation of good-time

credits); Rogers v. Department of Corrections, 263 F.3d 163 (5th Cir. 2001) (same as to parole

revocations). The record clearly indicates that no court has ever invalidated the revocation of

plaintiff's mandatory supervision or the denial of sentence credits. (See Spears Quest. #1). Plaintiff

is therefore precluded from maintaining a civil rights action under 42 U.S.C. § 1983.

C.

To the extent plaintiff seeks an injunction ordering his immediate release from confinement,

his complaint must be construed as an application for writ of habeas corpus under 28 U.S.C. § 2254.2

 

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See Kennedy v. State of Texas Pardons and Paroles, No. 04-10428, 136 Fed. Appx. 712 (5th Cir. Jun. 29, 2005).

See Jackson v. Torres, 720 F.2d 877, 879 (5th Cir. 1983). A federal court may not grant habeas

relief unless a petitioner fully exhausts available state remedies. 28 U.S.C. § 2254(b)(1). This

entails submitting the factual and legal basis of any claim to the highest available state court for

review in a procedurally correct manner. Satterwhite v. Lynaugh, 886 F.2d 90, 92-93 (5th Cir.

1989); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 103 S.Ct. 1508 (1983). A

Texas prisoner must present his claims to the Texas Court of Criminal Appeals in a petition for

discretionary review or an application for writ of habeas corpus. See Bautista v. McCotter, 793 F.2d

109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). A federal

habeas petition that contains unexhausted claims must be dismissed in its entirety. Thomas v.

Collins, 919 F.2d 333, 334 (5th Cir. 1990), cert. denied, 111 S.Ct. 2862 (1991); Bautista, 793 F.2d

at 110.

Although petitioner challenged the revocation of his mandatory supervision and the denial

of sentence credits in two different state writs of habeas corpus, both writs were dismissed for failure

to comply with section 501.0081 of the Texas Government Code. See Ex parte Kothmann, Nos.

56,222-01 & 56,222-02 (Tex. Crim. App. Jul. 16, 2003). That statute provides:

(a) The [TDCJ] shall develop a system that allows resolution of

a complaint by an inmate who alleges that time credited on the

inmate's sentence is in error and does not accurately reflect the

amount of time-served credit to which the inmate is entitled.

(b) Except as provided by Subsection (c), an inmate may not in

an application for writ of habeas corpus under Article 11.07, Code of

Criminal Procedure, raise as a claim a time-served credit error until:

(1) the inmate receives a written decision issued by the

highest authority provided for in the resolution system; or

 

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(2) if the inmate has not received a written decision

described by Subdivision (1), the 180th day after the date on which

under the resolution system the inmate first alleges the time-served

credit error.

(c) Subsection (b) does not apply to an inmate who, according to

the department's computations, is within 180 days of the inmate's

presumptive parole date, date of release on mandatory supervision,

or date of discharge . . .

TEX. GOV'T CODE ANN. § 501.0081 (Vernon 2004). See also Ex parte Stokes, 15 S.W.3d 532, 533

(Tex. Crim. App. 2000). Because plaintiff has not complied with the requirements of section

501.0081, he has not satisfied the exhaustion requirement. See Sandlin v. Cockrell, No. 3-02-CV1216-L, 2002 WL 31455511 at *2 (N.D. Tex. Oct. 31, 2002) (Kaplan, J.). 

RECOMMENDATION

Plaintiff's complaint should be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2).

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: February 9, 2006.

 

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