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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
ZACHERY HALSELL #1653953
DEBORAH MORGAN and
REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
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
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
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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.
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
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
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).
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).
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.
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
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.
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.
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
SIGNED this 10 day of July, 2013.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE