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Case 1:13-cv-00455-LY Document 9 Filed 07/10/13 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS

AUSTIN DIVISION

ZACHERY HALSELL #1653953

V.

ALLISON TAYLOR,
DEBORAH MORGAN and
LISA WORRY

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§ A-13-CA-455-LY
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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 Rules of the United

States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to

United States Magistrates, as amended, effective December 1, 2002.

Before the Court are Plaintiff’s complaint and more definite statement. 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

Estelle Unit of the Texas Department of Criminal Justice - Correctional Institutions Division. 1

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On December 29, 1994, Plaintiff was convicted of attempted murder, indecency with a
child, aggravated sexual assault of child and intentional exposure to AIDS. He was sentenced to ten
years in prison in each case. After Plaintiff served his criminal sentences, the State of Texas filed
a petition to civilly commit Plaintiff as a sexually violent predator. After a jury trial, the trial court
entered a final judgment and order of civil commitment. Plaintiff subsequently pleaded guilty, was
convicted in Tarrant County, Texas, of violating the civil commitment order and was sentenced to
45 years in prison. He is currently serving this sentence. See Halsell v. Thaler, No. 3:12-CV-4963-B

Case 1:13-cv-00455-LY Document 9 Filed 07/10/13 Page 2 of 6

Plaintiff sues Allison Taylor, Deborah Morgan and Lisa Worry of the Office of Violent Sex Offender

Management. Plaintiff alleges:

Challenge the unconstitutionality of the biennial Review procedures and the lack of
due process. Plaintiff claim cruel and unusual Punishment under the Eighth
Amendment. The defendants actions were “motivated by evil motive or intent” and
reckless, callous. indifference in my rights. Deprive Plaintiff Rights, Privileges or
immunities secured by the constitution and laws. Shall be liable to the Party injured
in an action at law, suit in equity, or other proper proceeding for redress. Plaintiff
suffer Mental Anguish, Mind Grain Head Aches, Loss of Sleep do to knightmares
and emotion strain. Plaintiff would respectfully request the court and jury to consider
the Amount of the loss Plaintiff have incurred in the past and will incurr in the future.
Violate Plaintiff Fourteenth Amendment to the constitution guarantee everyone equal
protection of the law.

Plaintiff further alleges the defendants perjured themselves at an unspecified judicial proceeding in

an affidavit. Plaintiff requests the Court to correct the injustice that is “civil commitment.” He

requests that he be allowed to complete the program, discharge his term of civil commitment and

go home. He also seeks compensatory and punitive damages.

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After consideration of Plaintiff’s complaint, he was ordered to file a more definite statement.

Plaintiff’s more definite statement is not any clearer than his original complaint. Plaintiff does,

however, state the defendants violated his constitutional rights on March 20, 2010.



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

(N.D. Tex.).

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To the extent Plaintiff requests to be allowed to complete his term of civil commitment, his
request is moot in light of his 45-year sentence for violating the terms of his civil commitment order.

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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).

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.

Statute of Limitations

Plaintiff’s claims against the defendants in their individual capacities are barred by the

applicable statute of limitations. There is no federal statute of limitations for § 1983 actions.

Piotrowski v. City of Houston, 51 F.3d 512, 514 n.5 (5th Cir. 1995); Henson-El v. Rogers, 923 F.2d

51, 52 (5th Cir. 1991), cert. denied, 501 U.S. 1235 (1991). Therefore, the Supreme Court has

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directed federal courts to borrow the forum state’s general personal injury limitations period. Owens

v. Okure, 488 U.S. 235, 249-50 (1989). In Texas, the applicable limitations period is two years.

Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994) (citing TEX. CIV. PRAC. & REM. CODE ANN.

§ 16.003(a) (Vernon 1986)). Nevertheless, federal law determines when a § 1983 cause of action

accrues. Gartrell v. Gaylor, 981 F.2d 254, 257 (5th Cir . 1993). A cause of action under § 1983

accrues when the aggrieved party knows, or has reason to know of, the injury or damages which form

the basis of the action. Piotrowski, 51 F.3d at 516.

Plaintiff alleges the defendants violated his constitutional rights on March 20, 2010.

Therefore, Plaintiff had until March 20, 2012, to file his civil-rights lawsuit. Plaintiff executed his

civil-rights complaint on May 23, 2013, more than a year after the limitations period expired.

RECOMMENDATION

It is therefore recommended that Plaintiff’s claims against the defendants in their official

capacities be dismissed without prejudice for want of jurisdiction. It is further recommended that

Plaintiff’s claims against the defendants in their individual capacities be dismissed with prejudice

as frivolous pursuant to 28 U.S.C. § 1915(e), because they are time-barred.3

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

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Plaintiff also fails to state a claim upon which relief can be granted. A complaint must
contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its
face.” Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The Supreme Court has made clear this
plausibility standard is not simply a “probability requirement,” but imposes a standard higher than
“a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). Plaintiff’s allegations are insufficient to state a claim.

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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

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 should be warned that for causes of action which

accrue after June 8, 1995, the Texas Department of Criminal Justice, upon receipt of a final order

of a state or federal court that dismisses as frivolous or malicious a lawsuit brought by an inmate

while the inmate was in the custody of the Department or confined in county jail awaiting transfer

to the Department following conviction of a felony or revocation of community supervision, parole,

or mandatory supervision, is authorized to forfeit (1) 60 days of an inmate’s accrued good conduct

time, if the Department has previously received one final order; (2) 120 days of an inmate’s accrued

good conduct time, if the Department has previously received two final orders; or (3) 180 days of

an inmate’s accrued good conduct time, if the Department has previously received three or more

final orders. See, TEX. GOV’T CODE ANN. § 498.0045 (Vernon 1998).

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 TDCJ

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- Office of the General Counsel and the Pro Se Clerk for the United States District Court for the

Eastern District of Texas.

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

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).

To the extent that a party has not been served by the Clerk with this Report and

Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is

ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return

receipt requested.

SIGNED this 10 day of July, 2013.

th

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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