     Case: 12-50020   Document: 00512027895   Page: 1   Date Filed: 10/22/2012




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                                  FILED
                                                                October 22, 2012
                                No. 12-50020
                              Summary Calendar                   Lyle W. Cayce
                                                                      Clerk

DAVID LIGHTFOOT HERNANDEZ,

                                          Plaintiff-Appellant

v.

BRAD LIVINGSTON, Executive Director, Texas Department of Criminal
Justice, Individually and in his Official Capacity; BRYAN COLLIER, Executive
Director, Texas Board of Pardons and Paroles, Individually and in his Official
Capacity; LINDA MCCARVER, Regional Supervisor, Board of Pardons and
Paroles, Individually and in her Official Capacity; LINDA SCHULTZ, Temple
Parole Office Supervisor, Individually and in her Official Capacity; VERNON
JUDY, Parole Officer, Individually and in his Official Capacity; GWEN COX,
Parole Officer, Individually and in her Official Capacity; RON LLYOD, Parole
Officer, Individually and in his Official Capacity; DOW FOGELMAN, Parole
Officer, Individually and in his Official Capacity; RON MASSIE, Parole Officer,
Individually and in his Official Capacity; JOHN AND JANE DOES 1-31,
Senators, Individually and in his/her Official Capacity; JOHN AND JANE DOES
1-150, Representatives, Individually and in his/her Official Capacity;
GOVERNOR RICK PERRY, Individually and in his Official Capacity; ET AL;
JOHN DOES, Past, present, and future in his/her Official Capacity as Executive
Director of the Texas Department of Criminal Justice, and Individually; JOHN
DOES, Past, present, and future Administrators, Parole Board Members, Parole
Officers, and other agents working for the Texas Department of Criminal
Justice, Individually and in their Official Capacity; JOHN DOES, Past, present,
and future Members of the Texas Legislature, Individually and in their Official
Capacity; JOHN DOES, present, and future Governor of the State of Texas,
Individually and in his/her Official Capacity,

                                          Defendants-Appellees
   Case: 12-50020       Document: 00512027895         Page: 2     Date Filed: 10/22/2012

                                       No. 12-50020



                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:09-CV-55


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       David Lightfoot Hernandez, Texas prisoner # 458230, seeks leave to
proceed in forma pauperis (IFP) on appeal of the district court’s dismissal of his
42 U.S.C. § 1983 action as frivolous and for failure to state a claim upon which
relief may be granted. By moving for leave to proceed IFP, Hernandez is
challenging the district court’s certification that his appeal is not taken in good
faith because it is frivolous. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(5).
       Hernandez argues that the district court did not properly consider his
objections to the magistrate judge’s report and recommendation. He maintains
that the district court erred by dismissing his claims challenging the imposition
of electronic monitoring and house arrest conditions upon him while he was
released on mandatory supervision. He asserts that the electronic monitoring
and house arrest conditions were impermissible because the Texas Board of
Pardons and Paroles (TBPP) did not have the power to impose those conditions.
He maintains that the electronic monitoring and house arrest constituted false
imprisonment and violated his due process rights because those conditions were
not listed on the face of his original certificate of mandatory supervision. He
contends that electronic monitoring and house arrest could not be lawfully
imposed upon him because the certificate of mandatory supervision was a


       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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                                 No. 12-50020

contract that he refused to sign. Hernandez argues that the district court erred
by dismissing his claim that he was unconstitutionally not given credit on his
sentence for the time he was released on mandatory supervision. He maintains
that the district court erred by dismissing his claim that the defendants acted
in bad faith.
      Because Hernandez submitted written objections to the magistrate judge’s
report and recommendation, the district court was required to conduct a de novo
review of the report and recommendation, Hernandez’s objections, and the
record. See 28 U.S.C. § 636(b); Koetting v. Thompson, 995 F.2d 37, 40 (5th Cir.
1993). Although the district court did not discuss the merits of Hernandez’s
claims, it adopted the magistrate judge’s report and recommendation, and the
district court was not required to reiterate the findings of the magistrate judge
or making new findings. Koetting, 995 F.2d at 40.
      The district court found, and Hernandez acknowledged, that TEX. GOV’T
CODE § 508.221 authorizes the TBPP to impose a condition of electronic
monitoring that Hernandez asserts amounts to house arrest.          Hernandez,
however, argued that § 508.221 violated the Texas Constitution because it gave
powers to the executive branch that were exclusively reserved to the judicial
branch by TEX. CODE CRIM. PRO. Art. 42.12, § 1. He contended that because
electronic monitoring was listed as a condition that Texas courts could impose
on community supervision under Art. 42.12, the TBPP was infringing on the
powers of the judicial branch by imposing the same condition as a condition of
release on mandatory supervision.
      The community supervision statute provides only that the conditions of
community supervision are the responsibility of the Texas courts; it does not
provide that the conditions of community supervision set forth in the community
supervision statute cannot be used by the executive branch for inmates on parole
or mandatory supervision. See Art. 42.12. Accordingly, § 508.221 does not
infringe on the province of the judicial branch in violation of the Texas

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Constitution. See Art. 42.12. Hernandez’s argument to the contrary is without
merit. See id.
      Hernandez’s assertion that the imposition of electronic monitoring and
house arrest was unconstitutional because those conditions were not included
on his original certificate of mandatory release is also without merit. When a
prisoner is released on mandatory supervision, the state must give him “a
written statement stating in clear and intelligible language the conditions and
rules of [his] supervision.” TEX. GOV’T CODE ANN. § 508.154(c). However,
Hernandez “has no federal right to insist that a state follow its own procedural
rules.” Jackson v. Cain, 864 F.2d 1235, 1252 (5th Cir. 1989).
      While parolees are required to sign a parole contract and accept the
conditions of parole in order to be released, Texas law does not require inmates
released on mandatory supervision to sign a contract. It requires only that
inmates released on mandatory supervision be given the rules and conditions of
their release in writing. See § 508.154(b), (c). Texas law further requires all
releasees, whether on parole or mandatory supervision, to “be amenable to the
conditions of supervision ordered by a parole panel.” § 508.154(d).
      Hernandez argues that the inclusion of signature blocks for him and a
state official to sign showed that the certificate of mandatory supervision was
intended to be a contract and that his refusal to sign it showed that there was
no binding contract. However, the case to which he cites, Scaife v. Associated Air
Ctr. Inc., 100 F.3d 406, 407-11 (5th Cir. 1996), concerned a civil contract between
two private parties, not a criminal matter such as release on mandatory
supervision where the law provides that an inmate released on supervision must
be amenable to the conditions imposed. See § 508.154(d). As Texas law does not
require inmates released to mandatory supervision to sign a contract,
Hernandez’s allegation that conditions of electronic monitoring and house arrest
could not apply to him because he refused to sign his certificate of mandatory
supervision is without merit. See § 508.154(c).

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                                  No. 12-50020

      A prisoner’s challenge to the fact or duration of his confinement that seeks
a shorter term of confinement or immediate release must be brought in a habeas
corpus action, not a § 1983 action. Preiser v. Rodriguez, 411 U.S. 475, 500
(1973). As Hernandez’s claim for credit on his sentence for the time he spent on
mandatory supervision, if successful, would necessarily demonstrate the
invalidity of the duration of his current confinement, it could not be brought in
the present § 1983 action. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005).
Furthermore, the claim is without merit; inmates do not have a federal
constitutional right to sentence credit for time spent on parole, and time spent
subject to electronic monitoring and home detention is not time in physical
custody. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); cf. Reno v.
Koray, 515 U.S. 50, 58-59 (1995).
      Hernandez’s bad faith claim was not a stand alone claim, and, as
Hernandez acknowledged in the district court, his bad faith claim cannot stand
“without identifying any liberty interest of which he was deprived in violation
of his constitutional rights.” As shown above, Hernandez’s complaint failed to
allege a constitutional or federal law claim upon which relief may be granted.
Accordingly, his bad faith claim must also fail. See Leffall v. Dallas Indep. Sch.
Dist., 28 F.3d 521, 525 (5th Cir. 1994) (“To state a claim under § 1983, a plaintiff
must (1) allege a violation of rights secured by the Constitution or laws of the
United States and (2) demonstrate that the alleged deprivation was committed
by a person acting under color of state law.”).
      Hernandez’s appeal is without arguable merit and is frivolous.             See
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). The IFP motion is denied,
and the appeal is dismissed. See Baugh, 117 F.3d at 202; 5TH CIR. R. 42.2.
      Both the dismissal of this appeal and the district court’s dismissal of
Hernandez’s complaint count as strikes for purposes of § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Hernandez has previously
accumulated at least one strike. See Hernandez v. Thompson, 464 F. App’x 221,

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223 (5th Cir. 2010). As Hernandez has now accumulated three strikes, he is
barred from proceeding IFP pursuant to § 1915 while he is incarcerated or
detained in any facility unless he is under imminent danger of serious physical
injury. See § 1915(g).
      IFP MOTION DENIED; APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR
IMPOSED.




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