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

__________________________________________

CELESTINO ALVAREZ, JR., PRO SE, §

TDCJ-CID No. 1177070 §

Previous TDCJ-CID No. 558394 §

Previous TDCJ-CID No. 619761 §

Previous TDCJ-CID No. 938478 §

§

 Plaintiff, §

§

v. § 2:05-CV-0331

§

TEXAS DEPARTMENT OF §

CRIMINAL JUSTICE and §

TEXAS BOARD OF PARDONS AND §

PAROLES, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff CELESTINO ALVAREZ, JR., acting pro se and while incarcerated as a

prisoner 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 defendants and has been allowed to proceed in forma pauperis.

Plaintiff claims the discharge date on his parole certificate is December 18, 2005 and

that the defendants have extended his sentence. Plaintiff requests immediate release and unspecified

monetary damages.

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 state a

 

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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

Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 2372, 129 L.Ed.2d 383 (1994)(any section 1983 claim which attacks the

unconstitutionality of a conviction (or imprisonment, as the case may be) does not accrue until that 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." Wells v. Bonner, 45 F.3d 90, 94

(5th Cir. 1995) (quoting Heck v. Humphrey, S.Ct. at 2372).).

2

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 also 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 to determine if his claims

present grounds for dismissal or should proceed to answer by defendants.

THE LAW AND ANALYSIS

“[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)-if success in that action would necessarily

demonstrate the invalidity of confinement or its duration.” Wilkinson v. Dotson, 544 U.S. 74, 125

S.Ct. 1242, 1248, 161 L.Ed.2d 253 (2005). Habeas corpus is the exclusive remedy for a state

prisoner who challenges the fact or duration of his confinement and seeks immediate or speedier

release. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Therefore,

plaintiff’s request for immediate release from incarceration must be pursued through an action in

habeas corpus. Further, any civil rights claims plaintiff may wish to assert will not accrue until after

Heck3 conditions have been met. Boyd v. Biggers, 31 F.3d 279 (5th Cir. 1994).

 

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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:

The referral of the instant cause to the United States Magistrate Judge is hereby

withdrawn.

This Civil Rights Complaint is DISMISSED WITH PREJUDICE TO BEING

ASSERTED AGAIN UNTIL THE HECK CONDITIONS ARE MET. Johnson v. McElveen, 101

F.3d 423, 424 (5th Cir. 1996).

Plaintiff’s claims sounding in habeas are DISMISSED WITHOUT PREJUDICE.

LET JUDGMENT BE ENTERED ACCORDINGLY.

All 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 28th day of April, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

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