Sneed v. Abbott

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

BOBBY SNEED

CIVIL ACTION

VERSUS

NO. 21-279-JWD-RLB

FRANCIS ABBOTT, ET AL.

RULING AND ORDER

This matter comes before the Court on the Motion to Dismiss Pursuant to F.R.C.P. Rule

12(b)(6) (“MTD II”) (Doc. 16) filed by Defendants, the Louisiana Committee on Parole (the

“Committee”) Executive Director Francis Abbott and Committee members Tony Marabella,

Sheryl Ranatza, Jim Wise, Pearl Wise, and Alvin Rouche, Jr. (the “Committee Members”) (Abbott

and the Committee Members are, collectively, “Defendants”). Plaintiff Bobby Sneed opposes the

motion. (Doc. 18.) Defendants have filed a reply. (Doc. 20.) Oral argument is not necessary. The

Court has carefully considered the law, the facts alleged in the First Amended Complaint (“FAC”)

(Doc. 12) and its attachments, and the arguments and submissions of the parties and is prepared to

rule.

Preliminarily, the Court notes that, if true, the allegations of the FAC are extremely

troubling. The FAC portrays Defendants as petty tyrants who are accountable to no one and who

exercise their power without regard to the wellbeing of those within their jurisdiction. If true,

Defendants’ flagrant disregard of procedural norms in the two hearings at issue is, at best, irregular,

and, at worst, reprehensible.

But, however terrible the Court finds Defendants’ alleged conduct to be, it is bound to

apply controlling precedent. That authority—Heck v. Humphrey, 512 U.S. 477 (1994) and its

progeny—provides that, when a plaintiff makes an attack on the propriety of a single defective

parole hearing (or, in this case, two hearings) and seeks an earlier release from custody, then such

claims cannot be asserted until state habeas corpus remedies are exhausted.

Having carefully considered the matter, the Court finds that Plaintiff’s claims are barred

by Heck. While the Heck line has an exception for attacks on general parole procedures, the

allegations of the FAC do not fall into this category. Consequently, Defendant’s motion will be

granted.

However, because it is possible that Plaintiff could make an attack on general parole

procedures, he will be given an opportunity to amend the operative complaint to state viable

claims. If Plaintiff instead chooses to pursue state habeas relief, then judgment will be entered in

this action, and his claims will be dismissed without prejudice.

I. Relevant Factual and Procedural Background

A. Introduction

The following allegations are taken from the FAC and its attachments. See Innova Hosp.

San Antonio, Ltd. P'ship v. Blue Cross and Blue Shield of Georgia, Inc., 892 F.3d 719, 726 (5th

Cir. 2018). They are assumed to be true for purposes of this motion and construed in a light most

favorable to Plaintiff. See Thompson v. City of Waco, Tex., 764 F.3d 500, 502–03 (5th Cir. 2014).

Plaintiff is a 74-year-old man named Bobby Sneed. (FAC, Doc. 12 at 1.) Plaintiff spent

nearly 47 years at Louisiana State Penitentiary (“LSP”). (Id.)

On March 15, 2021, Plaintiff unanimously won his parole. (Id.) “Prison authorities moved

slowly in processing his release.” (Id.) Plaintiff alleges that the Department of Corrections

continued to hold him at LSP even after the parole board vote and after his residential plan was

approved; “absolutely nothing (except bureaucratic delay from LSP officials) prevented Mr.

Sneed’s immediate release.” (Id. ¶ 16.)

“[E]ach day that passed, Mr. Sneed’s health grew worse. Already having suffered a stroke

in LSP custody in years past, Mr. Sneed developed COVID-19, pneumonia, sepsis, and hypoxia.”

(Id. at 1.)

His release date was set for March 26, 2021, but, less than 24 hours before that day, Plaintiff

collapsed and was rushed to a nearby hospital. (Id.) He was returned to LSP four days later and

placed in “Administrative Segregation.” (Id.) “Based on a urine sample that may (or may not) have

been extracted from an unconscious Mr. Sneed, prison officials alleged that Mr. Sneed possessed

contraband (i.e., drugs) that caused his collapse.” (Id. at 1–2; see also id. ¶¶ 19–22.) “Mr. Sneed’s

release date came and went, with no action from LSP.” (Id.)

B. The LSP Disciplinary Proceeding

According to Plaintiff, “[he] spent over a month in a portion of LSP known as ‘the

Dungeon,’ without his artificial teeth or shoes, before getting his administrative hearing.” (FAC,

Doc. 12 at 2.) “After a three-hour Disciplinary Board hearing on Wednesday, May 6, 2021, a panel

of prison officials cleared Mr. Sneed of all wrongdoing related to his March 25, 2021 medical

emergency.” (Id.; see also id. ¶¶ 16–22, 29–33.)

The FAC elaborates on the questionable aspects of the Disciplinary Board proceeding.

Specifically, the Disciplinary Board initially denied all of Plaintiff’s motions raising procedural

objections, such as the failure to promptly adjudicate the Board’s allegations and the failure to

provide proper notice, and those motions seeking to confront his accuser, call witnesses, and

conduct a further investigation (including to review his medical records). (Id. ¶ 29.) The FAC

explains:

The Disciplinary Board then read into the record the chief evidence

against Mr. Sneed: a presumptive positive test from a “ToxCup”

urine test for amphetamine and methamphetamine from March 25,

2021, and a subsequent laboratory test of that sample suggesting the

additional presence of opiates. Mr. Sneed was then given the

opportunity to present evidence. He introduced evidence indicating

LSP officials (1) fraudulently altered their “ToxCup” forms in Mr.

Sneed’s case; (2) mishandled the urine samples before they were

sent to an outside laboratory; and (3) had no idea how, when, or if

the purported urine sample was obtained from an unconscious Mr.

Sneed. Mr. Sneed testified that he had almost no memories from

March 25, 2021 because he was unconscious for most of the day.

(Id. ¶ 30.) Plaintiff’s medical records were withheld, so he “had no opportunity to argue that other

medications he was prescribed were responsible for generating any false positive results, if in fact

that urine was obtained from him.” (Id. ¶ 31.) The FAC continues:

For instance, prison officials concealed (until May 11, 2021) that

they injected Mr. Sneed with morphine before taking him to an

outside hospital, which explains any opiates in his urine; many other

drugs commonly administered to treat diabetes, high blood pressure,

sinus and nasal congestion, and pneumonia can result in false

positive tests for amphetamine and methamphetamine.

(Id.)

Additionally, though Plaintiff was found not guilty, he was faced with another “baseless

charge” (“being impermissibly present in the dormitory where Mr. Sneed collapsed on March 25,

2021”), but LSP officials withdrew this charge the following day “when they were forced to

acknowledge Mr. Sneed was authorized to be there.” (Id. ¶ 33.) Thus, “Mr. Sneed was once again

due to return home to spend his final years with his siblings, children, and grandchildren.” (Id. at

2.)

C. Abbott’s Threats and Plea Bargaining

According to the FAC, Abbott knew about the allegations against Plaintiff since at least

March 31, 2021. (FAC ¶ 34, Doc. 12.)

On the evening of May 6, 2021, Plaintiff’s counsel asked Abbott about Plaintiff’s release,

and, later that evening, Abbott called the attorney and said that he “had the authority to revoke Mr.

Sneed’s parole despite the Disciplinary Board” and that he did not need to give Plaintiff formal

“notification” of misconduct. (Id. ¶¶ 34-37.) Abbott proposed that Sneed go to a nine-month drug

treatment program with the Department of Corrections while the Committee would “keep the

matter open.” (Id. ¶ 38.) Sneed “might re-earn his parole.” (Id.)

Plaintiff’s counsel responded to these proposals, including by stating that he did not think

Abbott “had the authority to engage in such negotiations on behalf of the Committee.” (Id. ¶ 39.)

Plaintiff’s attorney said that the ultimate decision would be Plaintiff’s. (Id.) “No agreement was

reached, and counsel had no opportunity to communicate Mr. Abbott’s proposal to Mr. Sneed

before the next day’s events.” (Id. ¶ 41.)

Additionally, during this call, “Abbott referred derisively to the ongoing press coverage of

Mr. Sneed’s case and stated it would not help Mr. Sneed before the Committee on Parole.” (Id. ¶

40.) Abbott also asked if the Wall Street Journal would cover the matter. (Id.) Plaintiff claims

that Abbott knew of the “negative press coverage, and critical statements by Mr. Sneed’s counsel

about Louisiana corrections officials, beginning at the latest May 6, 2021.” (Id. ¶ 42.) According

to the FAC, news coverage about Plaintiff’s situation “was generating substantial negative

publicity about Louisiana corrections officials,” including over 150,000 “views” on Reason.com

and a thirty-minute segment on a New York City radio station. (Id.) “[O]nline reaction to Louisiana

corrections officials’ actions was overwhelmingly hostile.” (Id.) “On behalf of Mr. Sneed, his

attorney made critical statements about Louisiana corrections officials, and was encouraging

others to petition Secretary LeBlanc.” (Id. (citing, e.g., Billy Binion, He Was Granted Parole After

Servicing 47 Years Behind Bars. Now the Prison Won’t Let Him Leave. REASON, MAY 6, 2021

MAY 6, 2021 (“It feels like we’ve gone from tragedy to farce.”).) “One of Mr. Sneed’s family

members agreed to talk with journalists, but only if their name and gender was masked.” (Id. ¶ 43

(citing Nicholas Chrastil, Angola Prison Who Faced Loss of Parole Cleared on Contraband

Charges, but Now Faces New Disciplinary Action for Being in Wrong Dorm, Lawyer Says, THE

LENS, May 6, 2021).) Plaintiff alleges that these news articles “portrayed Louisiana corrections

officials ina harsh light for their handling of Mr. Sneed’s release.” (/d. at 2.)

D. Parole “Rescinded” or Revoked

I. The May 7, 2021, “Hearing”

On May 7, 2021, Abbott emailed Plaintiff's attorney the following: “The Committee on

Parole has made the decision to rescind its original decision to grant Offender Sneed parole and

has scheduled Offender Sneed for a new parole hearing before a parole panel on Monday 5/7/21

[sic].” (FAC 4 44, Doc. 12.) A PDF letter was attached to the email with a file name ““B Sneed

Rescind Letter” which read:

Bobby R Sneed

DOC# 81275

Louisiana State Penitentiary

Hwy. 66

AngolaLA 70712

Dear Bobby R Sneed:

This correspondence is to advise you that the Parole Board has voted to rescind the parole granted at

your original parole hearing.

This action was taken due to the following:

We have been advised that you have admitted to drug usage after your original parole hearing.

You will be scheduled for another hearing on 05/10/2021.

ctfully,

rd of Pardle

Plaintiff's counsel promptly called Abbott. 7d.) Abbott said:

(1) that, in fact, there had not been a real Board “vote,” but rather,

Mr. Sneed’s parole had been taken unilaterally by Committee on

Parole member Tony Marabella (“I presented the paperwork and he

did the action”); (2) that no other members of the Committee on

Parole were notified of this action ahead of time; (3) that the

information that was provided to Mr. Marabella would not be shared

with Mr. Sneed; and (4) that there was no audio recording, minutes,

or other record of this ex parte proceeding involving him and Mr.

Marabella. But see La. Admin. Code, La. Admin. Code Title 22, Part

XI, § 111 (“There shall be no informal, off-the-record

communications regarding the merits or the substance of an

offender’s case between committee members for the purpose of

influencing a decision of the committee outside of an official public

hearing.”); accord id. at § 501 (“All meetings and hearings of the

committee shall be open to the public . . . .”).

(Id. ¶ 45.) Abbott told the lawyer, “That’s what happens. Mr. Sneed didn’t want Steve Hoyle.

That’s the decision.” (Id. ¶ 46.)

That afternoon, a local newspaper quoted Abbott as saying, “[W]e have made the decision

to rescind that parole.” (Id. ¶ 47 (citation omitted).) “Mr. Abbott also refused to disclose the secret

evidence to members of the press, and was quoted in a different publication stating: ‘We’ve got

documents that were submitted to the board that are not open to the public.’ ” (Id. ¶ 48.)

A few minutes after the above notice, Plaintiff was sent a second letter regarding a “new”

parole hearing he would have that was referenced in the earlier letter. (Id. ¶ 49.) The letter said:

“The Committee on Parole has scheduled your parole hearing [for

7:45AM] on 05/10/2021. . . . You or your representative may

request, in writing, to continue or postpone your scheduled parole

hearing for good cause. The request must be received in the Board’s

office no later than fourteen (14) days prior to the scheduled hearing

date and must contain a specific reason(s) for the request.”

(Id.)

The FAC noted that submitting a request to postpone the hearing at least fourteen days

before it was “impossible.” (Id.) Sneed sent a number of letters to the Committee and Abbott

claiming that their actions violated state and federal law, and Plaintiff requested a continuance of

the hearing. (Id. ¶ 50.)

2. The May 10, 2021, “Hearing”

The next section of the FAC is entitled, “The Fix Is In: A ‘Hearing’ Unlike Any Other in

Louisiana Parole History.” (FAC, Doc. 12 at 16.) It begins by quoting some of the negative press

coverage Louisiana corrections officials and the Board received. (Id. ¶ 51.)

The Monday, May 10, 2021, hearing was held virtually by Zoom. (Id. ¶ 52.) Contrary to

all of the above communications—the May 7, 2021, letter, the private exchanges between Abbott

and Plaintiff’s lawyer, and Abbott’s public statements—“Marabella orally denied in the middle of

the hearing that Mr. Sneed’s parole had been ‘rescinded.’ ” (Id. ¶ 53.) Further, another Board

member (Alvin Roche) made contradictory and conflicting statements concerning whether

Plaintiff’s parole had been stripped, whether that question was the point of the hearing, or whether

the hearing was intended to “attempt to legitimate Mr. Marabella’s previously taken action.” (Id.

¶ 53.)

Further, “[t]hroughout the event, members of the Committee . . . made statements

indicating they had already discussed Mr. Sneed’s matter in off-the-record settings.” (Id. ¶ 54.)

Roche said, “there were some circumstances after [Mr. Sneed] was granted [parole] that caused us

to rescind our decision,” and, following Plaintiff’s denial, “Mr. Marabella confidently predicted

that his colleagues’ vote would ‘likely’ be to strip Mr. Sneed of his parole based on the private

information they had already received.” (Id.)

Plaintiff also tried to determine whether a formal “notification” of misconduct from a state

official had caused the hearing or whether the Committee had done so at Abbott’s prompting. (Id.

¶ 55.) Plaintiff again recited the Louisiana Administrative Code that the Committee required

“ ‘notification from the Secretary of the Department. . .’ that Mr. Sneed had engaged in

‘misconduct’ before it could act.” (Id.)

“Mr. Marabella confirmed that the Secretary had not been in contact with the

Committee[.]” (Id. ¶ 56.) Rather, according to Marabella, a “representative” of the Secretary had

given the required notification. (Id. ¶ 57.) Marabella did not identify who the “representative” was

or how and when this person contacted the Committee. (Id.) Plaintiff alleges:

Separately, Mr. Abbott told a reporter working on a story for the

Washington Post over the weekend that the required “notification”

came from LSP Deputy Warden Tracy Falgout, to whom Secretary

LeBlanc had delegated authority by affidavit for purposes of

triggering Committee on Parole review of previously granted parole

grants. In fact, no such delegation of authority or affidavit exists. .

. . No “notification” to the Committee on Parole, from Secretary

LeBlanc or anyone else, has been provided to Mr. Sneed.

(Id. ¶¶ 57–59.)

Plaintiff also alleges that he “repeatedly asked for a brief continuance” because of the lack

of notice, the need to review the “notification” the Committee had received, and the desire to obtain

documents which the parole board must share under Louisiana law. (Id. ¶ 60.) The Committee

denied his request, saying in part, “This hearing is very simple.” (Id.)

Plaintiff also moved the Committee to consider the record from his three-hour

administrative hearing which cleared him of wrongdoing. (Id. at 61.) “Mr. Marabella interrupted:

‘We’re going forward today! . . . The record is clear. Now we’re moving forward with the hearing.

Does your client wish to talk?’ ” (Id.)

The Committee had been advised that Plaintiff had suffered a stroke and had trouble

speaking, but the Committee denied Plaintiff’s request to allow his attorney to make statements

and answer questions on his behalf. (Id. ¶ 62.) The Committee let Plaintiff confer privately with

his attorney for two minutes (which was the first time Plaintiff had been given any opportunity to

speak with his attorney about the events of the previous Wednesday). (Id. ¶ 63.) Marabella then

“immediately began examining” Plaintiff, which was the “entirety of the evidence adduced at the

hearing”:

Q: You received a life sentence for the murder of Curtis James.

You’ve been in prison for 47 years. Is that correct?

A: Yes, sir.

Q: Mr. Sneed, the parole board held a lengthy hearing on March 15,

2021, hearing both support and opposition [sic], and recommended

[sic] parole with certain conditions. Do you recall that?

A: Yes, sir.

Q: Ten days later, you were found unresponsive. CPR was

administered, as well as Narcon [sic]. After medical intervention,

you were breathing and transported to the medical center. At which

time, while at Lane Memorial Hospital, part of your admission to

the Lane Memorial Hospital, as part of your history of what

happened, you indicated to them that you injected heroin earlier in

the day. Is that correct?

A: No, sir.

Q: Oh! You didn’t say that?!

A: No, sir.

Q: You didn’t inject something that you thought was heroin on that

day?

A: No, sir.

Q: You did inject methamphetamines, didn’t you?

A: No, sir.

Q: So you’re denying what you told the medical records?

A: I was unconscious. I didn’t tell the medical records anything.

Q: Mr. Sneed, you were transported breathing to Lane Memorial

Hospital, at which time you were interviewed by the doctors and the

medical staff there, and you indicated to them that you had injected

heroin earlier in the day and you later tested positive for both

methamphetamines and amphetamines.

A: No, sir.

Q: You didn’t?

A: No, sir.

Q: That’s what you’re telling us today? The records indicate

otherwise?

(Id.) The FAC continues:

After Mr. Marabella’s final question Mr. Sneed’s counsel

interjected: “And I have to object again. We have no idea what

records the parole board is referring to. We’ve repeatedly asked for

them, again and again, and been denied by prison authorities and by

Mr. Abbott. So I’d ask, if the board would like Mr. Sneed to respond

to specific allegations that we have notice of what . . .”

[] Mr. Marabella interrupted: “I just asked him the specific questions

and he has denied them.” Mr. Marabella further stated: “We’re not

guessing! We have hard facts that we’re relying on today. Now, your

client has denied all of these things, and we accept that, and that’s

in the record.” He later explained, “We have information. This

hearing is about the actions of your client on that particular day.”

(Id. ¶¶ 64–65.)

Plaintiff was denied additional requests to call witnesses and introduce evidence. (Id. ¶ 66.)

Marabella stated he would give Plaintiff’s counsel three minutes to make a closing statement, but,

after 2 minutes and 15 seconds, Marabella interrupted and said, “Mr. Frampton, you’ve made your

points.” (Id. ¶ 67.)

Plaintiff’s counsel then told the Committee of Abbott’s May 6, 2011, plea offer and urged

that it was unfair to punish Plaintiff because he refused to accept a plea bargain he never had an

opportunity to accept. (Id. ¶ 68.) Plaintiff’s counsel said:

I hadn’t spoken yet with Mr. Sneed [on Friday, May 7 when Mr.

Abbott’s letter arrived]; I still haven’t spoken with Mr. Sneed; this

[in the midst of the hearing] is literally the first time Mr. Sneed has

heard this . . . . I think this is highly improper, and I think the only

reason we are here is because of this improper plea bargaining

attempt. And it seems highly improper to penalize or punish Mr.

Sneed based on a resolution that I was not able to communicate to

him.”

(Id.) Marabella then interrupted Plaintiff’s attorney and cut off his microphone. (Id.) The FAC

then asserts:

Mr. Marabella then addressed Mr. Sneed: “You were granted parole.

10 days later you overdosed . . . . Today my vote is going to be to

deny your parole.” Another member stated that “based on the

information that’s been provided today, for today, in preparation for

today’s hearing, my vote today is to deny you parole.” The vote was

5-0 to “deny” parole. No member referred to “rescinding” parole

during the vote, and no member provided further details on the non-

public information Mr. Abbott provided them.

(Id. ¶ 69.)

E. Post-Hearing Discoveries

The following day, Tuesday, May 11, 2021, the Department of Corrections provided

Plaintiff’s medical records from Lane Regional Medical Center, which had purportedly been

“withheld for the past month (and that, perhaps, the Committee . . . was referencing throughout

the hearing).” (FAC ¶ 70, Doc. 12.) “The records support the conclusion that Mr. Sneed collapsed

due to COVID-19, pneumonia, and hypoxia, rather than the drug overdose prison officials alleged

and assumed.” (Id. ¶ 71.) Further, the records show that, when Plaintiff was admitted, he was

“lethargic and unable to participate in HPI [‘History of Present Illness’],” which was consistent

with his “consistent testimony” before the Disciplinary Board and Committee that he did not

remember anything of the March 25, 2021, and was unconscious during his interactions with

medical personnel. (Id. ¶ 72.)

On the next day, May 12, 2021, Plaintiff’s counsel spoke with Plaintiff’s Attending

Physician at Lane Regional Medical Center, Dr. Jess Anderson. (Id. ¶ 73.) Anderson was

identified through the “belatedly disclosed medical records.” (Id.) Anderson said:

(1) that she remembered Mr. Sneed well[;] (2) that neither she nor

the Nurse Practitioner who treated Mr. Sneed recalled Mr. Sneed

making any admission regarding drug use during his hospital stay;

(3) that it “didn’t make sense” that Mr. Sneed would be the source

of the purported confession given that he was “unable to participate

in HPI[;]” [and] (4) that if LSP employees, rather than Mr. Sneed,

told hospital doctors that Mr. Sneed had acknowledged drug use

(perhaps passing along rumors they had heard or invented), such

information could appear as it did in Mr. Sneed’s Admission Notes.

(Id.)

“Mr. Sneed remains incarcerated, in fragile health, at Louisiana State Penitentiary today.”

(Id. ¶ 74.) “According to the . . . Committee . . . , Mr. Sneed will be eligible for a new ‘hearing’

in the coming months.” (Id. ¶ 75.)

F. Plaintiff’s Claims

Plaintiff asserts the following claims: (1) a violation of his right to procedural due process,

(2) retaliation in violation of the First Amendment, and (3) “vindictiveness.” (FAC ¶¶ 76–98, Doc.

12.)

1. Due Process

As to the first, Plaintiff alleges,

Mr. Sneed’s parole was revoked by a Single Member Action on May

7, 2021 (as indicated in formal correspondence from the Committee

on Parole and in Executive Director Francis Abbott’s statements to

counsel and the press), somehow reinstated, and then revoked again

after the peculiar “clean-up” proceeding the following Monday, on

May 10, 2021. . . . Whether viewed as two separate revocations, or

one protracted revocation proceeding, the procedure violated the

Fourteenth Amendment’s Due Process Clause

(Id. ¶¶ 77–78.)

Plaintiff asserts that the Committee “lacks legal authority to withdraw a previously granted

parole by ‘rescind[ing]’ it.” (Id. ¶ 79.) Title 15 of the Louisiana Revised Statutes, which sets forth

the “legal framework for the Committee . . ., makes no mention of an authority to ‘rescind’ parole,

nor has any Louisiana court ever held that the Committee . . . has the power to ‘rescind’ a

previously granted parole (particularly not after a fixed release date).” (Id.) “In sum, once a

prisoner is granted parole, and certainly after a fixed release date, Louisiana law provides that this

individual remains paroled until such status is lawfully ‘revoked.’ ” (Id.(citing La. Rev. Stat. Ann.

§ 15:574.9).)

Here, Plaintiff was granted parole on March 15, 2015, and was given a fixed release date

of March 26, 2021. (Id. ¶ 80.) But, on either Friday, May 7, 2021, or Monday, May 10, 2021

(which was at least five weeks following the release date), Plaintiff’s parole was revoked. (Id.)

Plaintiff pleads:

Mr. Sneed was denied “due process of law” when his parole was

stripped:

a. He was not given written notice of the claimed violations of

parole.

b. The evidence against him was not disclosed.

c. He did not receive a meaningful opportunity to be heard, to

present witnesses, and to present documentary evidence.

d. He did not have the right to confront and cross-examine adverse

witnesses.

e. The hearing body was neither “neutral” nor “detached”[.]

f. He did not receive a written statement by factfinders as to the

evidence relied on and reasons for revoking parole.

(Id. ¶ 82.) The Committee also disregarded state law by revoking parole in response to a first

positive drug test. (See id. ¶ 83.) Plaintiff concludes, “The net effect was to deprive Mr. Sneed of

a liberty and property interest without the ‘due process of law’ guaranteed by the Fourteenth

Amendment.” (Id. ¶ 84.)

2. First Amendment Retaliation

As to Plaintiff’s second claim, he asserts:

Mr. Sneed engaged in constitutionally protected activity when he

made the difficult strategic decision to publicize his Disciplinary

Board proceedings—a story that quickly went “viral” nationally and

cast Louisiana corrections officials in a negative light; when he

challenged the credibility of Louisiana correctional officers at an

administrative hearing; and when he vigorously (and successfully)

availed himself of the procedural rights in opposing his disciplinary

charges before the LSP administrative hearing process.

[] Conspicuously, Mr. Abbott and the Committee on Parole took no

adverse action against Mr. Sneed at any point between March 25,

2021 and May 6, 2021; only after Mr. Sneed engaged in protected

First Amendment activity critical of Louisiana corrections officials

did the Committee on Parole act.

(FAC ¶¶ 87–88, Doc. 12.) Plaintiff again refers to the conversation between his attorney and

Abbott on May 6, 2021, in which Abbott “referred derisively to the ongoing press coverage of Mr.

Sneed’s case and stated it would not help [him] before the Committee” and “asked to be notified

if the Wall Street Journal was planning on covering the matter.” (Id. ¶ 89.)

Plaintiff then claims:

On the morning of May 7, 2021, Mr. Abbott presented information

to Mr. Marabella and stripped Mr. Sneed of his parole. Undertaking

discretionary acts that resulted in stripping a person of their parole,

after nearly 47 years in prison, caused Mr. Sneed to suffer an injury

that would chill a person of ordinary firmness from continuing to

engage in the protected activity. [(case citations omitted)].

(Id. ¶ 90.)

Plaintiff lastly pleads that Defendants’ “adverse actions beginning on May 7, 2021, and

continuing until May 10, 2021, were substantially motivated against Mr. Sneed’s exercise of

constitutionally protected conduct.” (Id. ¶ 91.) Further:

They were also a but-for cause of the actions: if Mr. Sneed’s alleged

drug use were an independently sufficient basis for acting to strip

his parole, Mr. Abbott and the Committee on Parole would have

acted at some point in the preceding 43 days, not only after Mr.

Sneed was cleared of wrongdoing.

(Id. ¶ 91.)

3. Vindictiveness

“The basic principle that criminal legal system actors may not retaliate against individuals

for their exercise of a statutory or constitutional right has been extended . . . to parole boards.”

(FAC ¶ 93, Doc. 12 (citations omitted).) Plaintiff claims that he exercised his constitutional and

statutory rights before the Disciplinary Board, by rejecting Abbott’s “plea bargain,” by raising his

concerns before the Committee, by protesting the Committee’s May 8, 2021, ex parte

“rescind[ing]” of his parole through various motions and objections at the May 10, 2021, hearing.

(Id. ¶ 94.) “In response, the Committee . . . took the unusually harsh action of stripping Mr. Sneed

of his parole entirely (and refused to even entertain the lesser alternative course that Mr. Abbott

floated like sending Mr. Sneed to a nine-month drug treatment program in DOC custody).” (Id. ¶

95.)

Plaintiff claims, “As with Mr. Sneed’s First Amendment claim, the Committee[’s] . . .

decision to wait until after Mr. Sneed (successfully) availed himself of his procedural rights defies

benign explanation.” (Id. ¶ 96.) Plaintiff again cites the fact that, by statute, parole officials may

generally not revoke parole in response to a parolee’s first drug test. (Id. ¶ 97.) Plaintiff alleges,

“There is a ‘reasonable likelihood’ that the Committee on Parole’s unusual (indeed unprecedented)

treatment of Mr. Sneed’s case is the product of actual vindictiveness in response to his exercise of

his rights.” (Id. ¶ 98 (citation omitted).)

4. Prayer

Plaintiff prays for declaratory and injunctive relief as well as costs and attorney’s fees.

(FAC, Doc. 12 at 27.) Plaintiff specifically “seeks declaratory and injunctive relief both with

respect to Defendants’ unlawful acts of May 7/May 10 and future unconstitutional conduct at the

hearing state officials intend to hold in the coming months.” (Id.)

G. The Instant Motion

Defendants now file the instant MTD II. (Doc. 16.) Defendants urge (1) that all of

Plaintiff’s claims are barred by the Heck doctrine; (2) “Plaintiff has no ‘constitutionally protected

liberty interest’ as to the Committee’s discretionary decisions to grant or rescind parole”; and (3)

for a number of reasons, Plaintiff has no retaliation or vindictiveness claim. (MTD II, Doc. 16 ¶¶

2–5.)

Here, the Court finds that the motion turns on the first issue, so the Court’s discussion will

be primarily focused on that. However, since the Court is granting leave to amend, the Court will

provide some guidance on the other issues.

II. Rule 12(b)(6) Standard

“Federal pleading rules call for a ‘short and plain statement of the claim showing that the

pleader is entitled to relief,’ Fed. R. Civ. P. 8(a)(2); they do not countenance dismissal of a

complaint for imperfect statement of the legal theory supporting the claim asserted.” Johnson v.

City of Shelby, Miss., 574 U.S. 10, 135 S. Ct. 346, 346–47 (2014) (citation omitted).

Interpreting Rule 8(a) of the Federal Rules of Civil Procedure, the Fifth Circuit has

explained:

The complaint (1) on its face (2) must contain enough factual matter (taken as true)

(3) to raise a reasonable hope or expectation (4) that discovery will reveal relevant

evidence of each element of a claim. “Asking for [such] plausible grounds to infer

[the element of a claim] does not impose a probability requirement at the pleading

stage; it simply calls for enough facts to raise a reasonable expectation that

discovery will reveal [that the elements of the claim existed].”

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009) (quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007)).

Applying the above case law, the Western District of Louisiana has stated:

Therefore, while the court is not to give the “assumption of truth” to conclusions,

factual allegations remain so entitled. Once those factual allegations are identified,

drawing on the court's judicial experience and common sense, the analysis is

whether those facts, which need not be detailed or specific, allow “the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

[Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009);] Twombly, 55[0] U.S. at 556[.] . . .

This analysis is not substantively different from that set forth in Lormand, supra,

nor does this jurisprudence foreclose the option that discovery must be undertaken

in order to raise relevant information to support an element of the claim. The

standard, under the specific language of Fed. Rule Civ. P. 8(a)(2), remains that the

defendant be given adequate notice of the claim and the grounds upon which it is

based. The standard is met by the “reasonable inference” the court must make that,

with or without discovery, the facts set forth a plausible claim for relief under a

particular theory of law provided there is a “reasonable expectation” that “discovery

will reveal relevant evidence of each element of the claim.” Lormand, 565 F.3d at

257, Twombly, 55[0] U.S. at 556[.]

Diamond Servs. Corp. v. Oceanografia, S.A. De C.V., No. 10-177, 2011 WL 938785, at *3 (W.D.

La. Feb. 9, 2011) (citation omitted).

In deciding a Rule 12(b)(6) motion, all well-pleaded facts are taken as true and viewed in

the light most favorable to the plaintiff. Thompson v. City of Waco, Tex., 764 F.3d 500, 502 (5th

Cir. 2014). The task of the Court is not to decide if the plaintiff will eventually be successful, but

to determine if a “legally cognizable claim” has been asserted. Id. at 503.

III. Discussion

A. Parties’ Arguments

1. Defendants’ Original Motion (Doc. 16) and Memorandum (Doc. 16-1)

Defendants first argue that Plaintiff’s claims are barred by the Heck doctrine because he

seeks immediate release from incarceration. (MTD II, Doc. 16 ¶ 2.) Defendants maintain that,

under Heck, a prisoner has no cognizable § 1983 claim where a judgment in Plaintiff’s favor would

imply the invalidity of his conviction or sentence, and that, before the Court can entertain such a

claim, the “individual must show that his conviction or sentence has been overturned or called into

question in a separate proceeding, such as a habeas corpus proceeding.” (Doc. 16-1 at 5 (citations

omitted).) Defendants then cite to a line of cases supporting their position as well as Fifth Circuit

precedent applying Heck to parole proceedings. (Id.) According to Defendants, under that

precedent, if plaintiffs allege a specific error in a parole case (rather than a general challenge to

parole proceedings), then the action is barred by Heck. (Id. at 5–6.)

Defendants assert that Plaintiff is not bringing a general challenge to parole proceedings

but claims an error in a specific case. (Id. at 6.) Specifically, Plaintiff seeks an order “invalidating

the Committee’s May 7th decision to rescind its prior decision granting parole and the

Committee’s subsequent May 10th decision to deny Plaintiff’s parole application.” (Id.) Further,

Defendants contend that “this federal suit is to be released from incarceration onto parole.” [sic]

(Id.) Defendants rely on Fields v. Hooper, No. 18-707, 2019 WL 3520517, at *3 (M.D. La. Apr.

23, 2019), report and recommendation adopted, No. 18-707, 2019 WL 3502910 (M.D. La. Aug.

1, 2019), which they claim is almost identical to the instant case. (Doc. 16-1 at 6–7.)

2. Plaintiff’s Opposition (Doc. 18)

Plaintiff responds that his action is not barred by Heck; “Because Mr. Sneed’s action, if

successful, will not demonstrate the invalidity of the criminal judgement against him, any reliance

on Heck is misplaced.” (Doc. 18 at 1.) Plaintiff returns to the line of cases cited by Defendants

and explains:

Even where a favorable ruling may dramatically increase the

likelihood of a prisoner obtaining release from confinement, or

advance the date at which that prisoner will likely obtain such

release from confinement, an action under 42 U.S.C. § 1983 remains

a wholly appropriate vehicle to assert constitutional claims. Only

where a favorable ruling would “necessarily demonstrate the

invalidity of confinement or its duration” must a prisoner seek relief

through the federal habeas corpus statute. [Wilkinson v. Dotson, 544

U.S. 74, 81–82 (2005)].

(Id. at 2.)

Plaintiff continues, “To be sure, a ruling in Mr. Sneed’s favor would, in all likelihood,

speed his release from Louisiana State Penitentiary, but it would not necessarily demonstrate the

unlawfulness of his current confinement.” (Id. at 2.) Plaintiff then refers to the Louisiana law and

regulations purporting to show that, even after the Committee votes to release a prisoner, there is

still a delay in which the Committee can reconsider its decision and in which the “prisoner must

still clear various hurdles if he wants to be released from confinement.” (Id. at 3.) “Release from

confinement, in other words, is never ‘automatic’ or immediate once a parole board has voted in a

prisoner’s favor, and a favorable vote from the parole board does not render all subsequent

confinement invalid.” (Id.) Plaintiff then asserts:

And this is why the relief Mr. Sneed seeks is not injunctive relief

requiring his immediate release from Louisiana State Prison or a

declaration that his imprisonment is unlawful; rather, he seeks an

injunction preserving the status quo ante, before the Defendants’

unconstitutional actions effectively nullified the effect of the

Committee on Parole’s March 15, 2021 vote granting Mr. Sneed his

parole. By enjoining the actions of May 7 and/or May 10, the Court

would not be declaring the invalidity of Mr. Sneed’s imprisonment.

It would simply restore Mr. Sneed to the place he was before the

peculiar, and unconstitutional, actions of the Defendants occurred

last month: on his way to (very likely, but not automatically) coming

home. In this regard, Mr. Sneed is no different than the prisoners

who prevailed in Dotson, and very much unlike the prisoner in Heck

whose suit necessarily challenged the lawfulness of his conviction.

(Id. at 3–4.)

Plaintiff next attempts to distinguish Fields on numerous grounds. Principally, Plaintiff

argues, in Fields, the prisoner’s parole was revoked following a conviction of prison misconduct,

and plaintiff wanted the parole board to reconsider the decision. (Id. at 5.)

Plaintiff then moves to Defendants’ argument that the matter should be “punt[ed] . . . to

habeas proceedings.” (Id. at 6.) Plaintiff responds by relying on this Court’s decision in Thomas

v. LeBlanc, No. 18-496, 2019 WL 1086358 (M.D. La. Mar. 7, 2019) (deGravelles, J.):

[T]his very Court correctly rejected such an expansive reading of

Thomas, properly holding that an individual defendant could

challenge the actions of the Committee on Parole in his individual

case (Jeffrey v. Owens notwithstanding). See Thomas[, supra at *8]

(“Thus, this case is much closer to Wilkinson and Hunter than to

Jeffrey. . . .”). Likewise in this case, although Mr. Sneed’s case is

unique and unprecedented in many respects, the case does not

involve simply a “challenge [to] a specific error in the denial of [an

individual prisoner’s] parole.” Id. at *6. Rather, the basic

contentions at the center of Mr. Sneed’s case turn on a state policy

of general import: Defendants claim that (under their own policies,

applied to Mr. Sneed and others) they have unfettered authority to

revoke anyone’s parole at any time unburdened by any

constitutional constraints, whereas Mr. Sneed argues this parole

practice and policy is contrary to the U.S. Constitution.

(Doc. 18 at 6.)

Lastly, Plaintiff argues that he references another parole hearing that will happen in the

coming months and seeks injunctive relief “barring ‘future unconstitutional conduct at the hearing

state officials intend to hold in the coming months.’ ” (Id. at 6–7 (quoting FAC ¶¶ 75, Prayer, Doc.

12 at 22, 27.) Thus, if Plaintiff stated a viable claim, Heck should not bar claims for prospective

relief. (Id. at 7 (citing Hunter v. Owens, 375 F. App'x 427, 429 (5th Cir. 2010).)

3. Defendants’ Reply (Doc. 20)

After Defendants describe Plaintiff’s arguments as “semantical,” “lengthy and often

circuitous,” they focus on “several admissions and acknowledgements that factually and legally

foreclose any further discussion regarding this issue.” (Doc. 20 at 2.) Defendants quote Plaintiff’s

contention (stated above) that a ruling in his favor would speed his release and that enjoining the

Committee’s actions on May 7 and May 10 would simply restore him to where he was the

preceding month: “on his way to (very likely, but not automatically) coming home.” (Id. (quoting

Doc. 18 at 2, 4).) According to Defendants, Plaintiff’s argument that this does not constitute

“immediate release” is foreclosed by Supreme Court and Fifth Circuit precedent, which apply

Heck and require a writ of habeas corpus even if the prisoner seeks “speedier release.” (Id. at 2–3

(citations omitted).)

Defendants next dispute Plaintiff’s attempt to “shoehorn his case into the very narrow

exception to the Heck doctrine as set forth in Wilkinson v. Dotson[.]” (Id. at 3.) Defendants again

quote the FAC, which alleges that the Committee’s actions constituted a “bizarre and lawless

parole revocation unlike any other in Louisiana history” (Id. (quoting FAC, Doc. 12 at 1).)

Defendants hammer that Plaintiff’s relief relates “solely and specifically to the Committee’s

decisions to rescind its prior decision granting parole (May 7) and to deny Plaintiff’s parole

application (May 10), which decisions Plaintiff alleges were ‘unlike any other in Louisiana

history.’ ” (Id. at 3-4.) Plaintiff’s efforts to change these allegations into a broader attack on

general parole procedures are, for Defendants, “nonsensical and directly contradicted by all of

Plaintiff’s allegations.” (Id. at 4.)

Defendants next contend that Thomas v. LeBlanc actually supports their position. (Id.)

According to Defendants, Thomas involved an inmate challenging his eligibility for parole under

state law, not a specific decision by the Committee. (Id.) Further, plaintiff in Thomas sought only

a new hearing in which the Committee could exercise its discretion. (Id.)

Thus, as the Court aptly noted, the plaintiff’s claims in Thomas were

“much closer” to those analyzed in Wilkinson (seeking solely a new

parole eligibility review or new discretionary hearing before parole

board) and Hunter (challenging retroactive application of new Texas

parole statute and seeking only a new parole hearing). [Thomas,

2019 WL 1086358,] at *8-9 (citing Wilkinson v. Dotson, 544 U.S.

74, 82 (2005) and Hunter v. Owens, 375 F. App'x 427, 429 (5th Cir.

2010)(unpublished)).

(Id.) According to Defendants, this case is more like Jeffrey v. Owens, 216 F. App’x 396 (5th Cir.

2006), which Thomas discussed, and Serio v. Members of Louisiana State Bd. of Pardons, 821

F.2d 1112 (5th Cir. 1987), which Thomas cited, where plaintiffs complained of specific errors in

their parole hearings and sought release. (Id. at 4–5.)

Before concluding, Defendants address the prospective relief argument as follows:

Finally, to the extent that Plaintiff, in trailing, mentions a “new

hearing” in the “coming months” and throws in a request barring

“future unconstitutional conduct”, Plaintiff has wholly failed to set

forth credible allegations that this alleged Committee action was due

to a written or even unwritten policy or that there is any likelihood

of similar actions at some, as of yet unknown dated future hearing.

(Id. at 5.)

B. Applicable Law

The Court agrees with the parties that Thomas v. LeBlanc squarely governs this issue. In

Thomas, this Court laid out the standards governing the Heck issue, which the Court will quote at

length:1

The Supreme Court “has held that a prisoner in state custody cannot

use a § 1983 action to challenge ‘the fact or duration of his

confinement.’ ” Wilkinson v. Dotson, 544 U.S. 74, 78, 125 S. Ct.

1242, 1245, 161 L. Ed. 2d 253 (2005) (citing Preiser v. Rodriguez,

411 U.S. 475, 489, 93 S. Ct. 1827, 36 L. Ed. 2d 439 (1973); Wolff v.

McDonnell, 418 U.S. 539, 554, 94 S. Ct. 2963, 41 L.Ed. 2d 935

(1974); Heck v. Humphrey, 512 U.S. 477, 481, 114 S. Ct. 2364, 129

L.Ed. 2d 383 (1994); Edwards v. Balisok, 520 U.S. 641, 648, 117 S.

Ct. 1584, 137 L.Ed. 2d 906 (1997) ). “He must seek federal habeas

corpus relief (or appropriate state relief) instead.” Id. The Wilkinson

court traced the case law on this issue, summarizing it as follows:

Throughout the legal journey from Preiser to

Balisok, the Court has focused on the need to ensure

that state prisoners use only habeas corpus (or similar

state) remedies when they seek to invalidate the

duration of their confinement—either directly

through an injunction compelling speedier release or

indirectly through a judicial determination that

necessarily implies the unlawfulness of the State's

custody. Thus, Preiser found an implied exception to

§ 1983's coverage where the claim seeks—not where

it simply “relates to”—“core” habeas corpus relief,

i.e., where a state prisoner requests present or future

release. Cf. post, at 1253 (KENNEDY, J., dissenting)

(arguing that Preiser covers challenges that “relate ...

to” the duration of confinement). Wolff makes clear

that § 1983 remains available for procedural

challenges where success in the action would not

necessarily spell immediate or speedier release for

the prisoner. Heck specifies that a prisoner cannot

use § 1983 to obtain damages where success would

necessarily imply the unlawfulness of a (not

previously invalidated) conviction or sentence. And

Balisok, like Wolff, demonstrates that habeas

1 The Court ordinarily eschews such extensive block quoting from a prior opinion, but, given the egregious allegations

of the operative complaint and the considerable need for prompt resolution of this motion, the Court will do so in this

case.

remedies do not displace § 1983 actions where

success in the civil rights suit would not necessarily

vitiate the legality of (not previously invalidated)

state confinement. These cases, taken together,

indicate that 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, 544 U.S. at 81–82, 125 S. Ct. at 1247–48.

However, in Wilkinson, the Supreme Court found that prisoners had

cognizable claims under § 1983 because they sought “relief that

[would] render invalid the state procedures used to deny parole

eligibility . . . and parole suitability. Id., 544 U.S. at 82, 125 S. Ct.

at 1248 (citing Wolff v. McDonnell, 418 U.S. 539, 554–55, 94 S. Ct.

2963, 41 L.Ed. 2d 935 (1974) ). Neither of the inmates in Wilkinson

sought “an injunction ordering his immediate or speedier release

into the community,” and “a favorable judgment [would] not

‘necessarily imply the invalidity of their convictions or sentences.’

” Id. (citations and alterations omitted). The Supreme Court

explained:

Success for [inmate] Dotson does not mean

immediate release from confinement or a shorter stay

in prison; it means at most new eligibility review,

which at most will speed consideration of a new

parole application. Success for [inmate] Johnson

means at most a new parole hearing at which Ohio

parole authorities may, in their discretion, decline to

shorten his prison term.

Id. (citations omitted).

Several Fifth Circuit cases have followed Wilkinson. For example,

in Hunter v. Owens, 375 F. App'x 427 (5th Cir. 2010) (per curiam),

the Fifth Circuit vacated a district court's order dismissing an ex post

facto claim by an inmate challenging the retroactive application of

a Texas statute. Id. at 429. The Fifth Circuit found that the inmate

sought “only prospective injunctive relief requiring that the Parole

Board apply the prior parole law of review by a three-member panel

to his future parole hearings and requiring Texas to grant him a

special parole review.” Id. The Fifth Circuit also stated: “Because

the parole board has the discretion to deny parole, the relief Hunter

seeks would not necessarily require immediate or speedier release

for Hunter. Therefore, the district court erred in holding that

Hunter's claim was precluded by Heck.” Id. (citing Dotson, 544 U.S.

at 82, 125 S. Ct. 1242); see also Kyles v. Garrett, 353 F. App'x 942,

946 (5th Cir. 2009) (per curiam) (reversing granting of summary

judgment on inmate claim for prospective injunctive relief based on

Dotson, and relief upon by Hunter ).

Conversely, in Jeffery v. Owens, 216 F. App'x 396, 397 (5th Cir.

2006) (per curiam), the Fifth Circuit dismissed a complaint for

failure to state a claim when the inmate was “not making a general

challenge to parole procedures” but rather “alleged a specific error

in his case—that the Board wrongly considered arrests which had

been expunged to deny him parole.” Id. at 397. Plaintiff had “sought

a declaratory judgment that the consideration of those arrests was

error and that the error was the sole reason for the denial of parole.”

Id.

Similarly, in Hampton, the magistrate judge recommended

dismissal of a claim with respect to plaintiff's revocation proceeding.

The plaintiff complained that, in 2010, he had not been told that he

would not receive credit for time he spent on supervised release and

that, had he known this, he would not have waived his right to a

formal revocation hearing before the Parole Board. Hampton, 2011

WL 6936411, at *2. Plaintiff also complained of the fact that, in

2011, the Parole Board denied an application for rehearing,

allegedly using procedures not in place at the time he committed his

original offense. Id.

In recommending dismissal of plaintiff's claims, the magistrate

judge explained: “ ‘[I]f a prisoner challenges a single hearing as

constitutionally defective, he must first exhaust state habeas

remedies.” Id. at *3 (citing Serio v. Members of the Louisiana State

Bd. of Pardons, 821 F.2d 1112, 1117 (5th Cir. 1987)). “This is so

even if the result of such a challenge would not entitle the plaintiff

to earlier release but would only entitle him to a new hearing with

proper procedural protections.” Id. (citing Serio, supra). The

magistrate judge concluded that the claim warranted dismissal

because Plaintiff sought an injunction “voiding his waiver of a

formal parole hearing, vacating the decision of the Parole Board

which revoked his supervised release, and granting him a ‘new

revocation hearing conducted under constitutionally proper

procedures.” Id. The magistrate concluded: “As such, he challenges

the specific outcome of his parole revocation proceedings and seeks

a new hearing in connection therewith. Pursuant to Serio, the

plaintiff must first pursue this claim in a habeas corpus proceeding

in state court and may not pursue federal habeas corpus relief until

he has exhausted his state court remedies.” Id. Since Plaintiff had

not exhausted these remedies, his claim was dismissed. Id.

Nevertheless, in Hampton, the magistrate judge went on to liberally

construe plaintiff's claim “as a challenge to the Parole Board's

general procedures” under the Due Process and Ex Post Facto

clauses. Id. (citing Jeffrey, supra). The magistrate judge ultimately

recommended dismissal of both claims for failure to state a claim,

and the district judge approved this recommendation. Id., 2011 WL

6936411, at *3–4 (M.D. La. Nov. 18, 2011), report and

recommendation approved, 2011 WL 6941682 (M.D. La. Dec. 31,

2011).

Thomas, 2019 WL 1086358, at *6–8.

C. Analysis

The Court finds that the parties have seized on the key issue from Thomas. On the one

hand, if Plaintiff is alleging that Defendants made specific errors in his parole proceeding and

seeks an order that necessarily requires immediate or speedier release or that necessarily implies

the unlawfulness of the State’s custody, then his claims are barred by Heck. See Thomas, 2019 WL

1086358, at *8. If, on the other hand, Plaintiff is “making an attack on the general parole

procedures and not on the specific outcome of his parole hearing,” and if success for Plaintiff

“means at most a new parole hearing at which [Louisiana] parole authorities may, in their

discretion, decline to shorten his prison term,” then the action is not barred by Heck. See id.

(internal citations omitted). The main question for this motion is into which of these two categories

the FAC falls.

Having carefully considered the matter, the Court finds that the FAC falls into the first

category that is barred by Heck. As Defendants argue, Plaintiff’s allegation that his parole

revocation was “unlike any other in Louisiana history,” (FAC, Doc. 12 at 1) strongly indicates that

he is attacking the outcomes of two specific proceedings. Moreover, although Plaintiff complains

about a host of procedural irregularities in the May 7, 2021, “hearing”2 and the May 10, 2021,

proceeding,3 all of these problems, reprehensible though they are, appear to be sui generis to

Plaintiff’s revocation (again, one “unlike any other in Louisiana history” and one which appears

to violate Louisiana law in many respects)). Thus, because Plaintiff challenges errors in single

hearings, not “general parole procedures,” his claims are barred by Heck.

Plaintiff attempts to rebut this in his opposition by stating:

Although Mr. Sneed’s case is unique and unprecedented in many

respects, the case does not involve simply a challenge to a specific

error in the denial of an individual prisoner’s parole. . . . Rather, the

basic contentions at the center of Mr. Sneed’s case turn on a state

policy of general import: Defendants claim that (under their own

policies, applied to Mr. Sneed and others) they have unfettered

authority to revoke anyone’s parole at any time unburdened by any

constitutional constraints, whereas Mr. Sneed argues this parole

practice and policy is contrary to the U.S. Constitution.

(Doc. 18 at 6 (cleaned up).) Unfortunately, “the basic contentions” are simply not asserted in the

operative complaint; rather, as amply demonstrated above, Plaintiff focuses on the numerous ways

in which his case is “unique and unprecedented.” Ultimately, “a motion to dismiss is evaluated on

the operative complaint, not a plaintiff's opposition.” Apollo Energy, LLC v. Certain Underwriters

at Lloyd's, London, 387 F. Supp. 3d 663, 677–78 (M.D. La. 2019) (deGravelles, J.) (citing, inter

alia, Servicios Azucareros de Venezuela, C.A. v. John Deere Thibodeaux, Inc., 702 F.3d 794, 806

(5th Cir. 2012) (stating that, on a Rule 12(b)(6) motion, “a court assesses the legal sufficiency of

2 These errors in the May 7, 2021, “hearing” include (1) that there was no “vote” but rather only a unilateral decision

by Marabella; (2) that no Committee members were given advanced notice of the action; (3) that the Board of Parole

would not share any information with Plaintiff; and (4) there was no record of this ex parte proceeding. (FAC ¶ 45,

Doc. 12.)

3 These procedural irregularities in the May 10, 2021, proceeding include that (1) there were off the record

communications, (FAC. ¶ 54, Doc. 12); (2) no formal notice was provided from the Secretary or “anyone else”, (id. ¶

55–59); (3) no continuance was provided, (id. ¶ 60), (4) the Committee refused to consider the Disciplinary Board’s

record, (id. ¶ 61); (5) the Committee refused to let Plaintiff speak through counsel despite his having suffered a stroke,

(id. ¶ 62–63); (6) the Committee refused to allow Plaintiff an opportunity to call witnesses or introduce evidence, (id.

¶ 66); and (7) the Committee punished him for refusing the “plea bargain,” (id. ¶ 68). (See also id. ¶ 82 (listing

procedural deficiencies).)

the complaint”); Becnel v. St. Charles Par. Sheriff's Office, No. 15-1011, 2015 WL 5665060, at *1

n. 3 (E.D. La. Sept. 24, 2015) (refusing to consider “new factual allegations” presented by plaintiff

in her opposition to defendants' motion to dismiss because “ ‘[i]t is axiomatic that a complaint

cannot be amended by briefs in opposition to a motion to dismiss.’ ” (citing In re Enron Corp Sec.,

Derivative & ERISA Litig., 761 F. Supp. 2d 504, 566 (S.D. Tex. 2011)).

Nevertheless, the Court notes that, while the MTD II must be judged by the allegations of

the FAC and its attachments, key statements in the Plaintiff’s opposition also support the Court’s

conclusion. Plaintiff argues, “To be sure, a ruling in Mr. Sneed’s favor would, in all likelihood,

speed his release from Louisiana State Penitentiary, but it would not necessarily demonstrate the

unlawfulness of his current confinement.” (Doc. 18 at 2.) The first clause concedes that a decision

in Plaintiff’s favor would speed his release, which brings Plaintiff’s claims under Heck. The

second clause, where Plaintiff tries to thread the needle, is plainly contradicted by Plaintiff’s later

statement that he is seeking to be restored to “the status quo ante” before the May 7th and 10th

hearings. (Doc. 18 at 3–4.) Contrary to Plaintiff’s arguments, this is clearly an effort which

“seek[s] to invalidate the duration of [his] confinement—[both] directly through an injunction

compelling speedier release [and] indirectly through a judicial determination that necessarily

implies the unlawfulness of the State's custody.” See Thomas, 2019 WL 1086358, at *7 (quoting

Wilkinson, 544 U.S. at 81–82). But, as shown above, this requires exhaustion through state habeas.

Plaintiff’s reliance on his claim for prospective relief also fails. “[I]f a prisoner challenges

a single hearing as constitutionally defective, he must first exhaust state habeas remedies.”

Thomas, 2019 WL 1086358, at *8 (quoting Hampton, 2011 WL 6936411, at *2. (citing Serio, 821

F.2d at 1117)). “This is so even if the result of such a challenge would not entitle the plaintiff to

earlier release but would only entitle him to a new hearing with proper procedural protections.” Id.

(citing Serio, 821 F.2d at 1117)). Consequently, because Plaintiff’s claim necessarily attacks and

seeks the invalidity of the May 7th and May 10th hearings, he must first exhaust his remedies.

Plaintiff’s reliance on Thomas falls short as well, for, as Defendants argue, Thomas in fact

supports their position. In Thomas, this Court found that the plaintiff was “making an attack on

the general parole procedures and not on the specific outcome of his parole hearing.” Id. at *8.

This Court cited the allegation that “ ‘Clearly, DPSC has arbitrarily modified its internal

regulations’ such that the department is improperly prohibiting geriatric parole based on an

incorrect interpretation of [Louisiana law].” Id. This Court concluded:

Thus, this case is much closer to Wilkinson and Hunter than to

Jeffrey. Like the plaintiffs in Wilkinson, Plaintiff is not seeking an

order for “his immediate or speedier release into the community.”

Id., 544 U.S. at 82, 125 S. Ct. at 1248. At most, like the Wilkinson

inmate, Plaintiff will obtain “a new parole hearing at which

[Louisiana] parole authorities may, in their discretion, decline to

shorten his prison term.” Id.; see also Hunter, 375 F. App'x at 429

(“Because the parole board has the discretion to deny parole, the

relief Hunter seeks would not necessarily require immediate or

speedier release for Hunter. Therefore, the district court erred in

holding that Hunter's claim was precluded by Heck.”); Kyles v.

Garrett, 353 F. App'x at 946 (“Kyles seeks relief that will ‘render

invalid the state procedures used to deny ... parole suitability’ but

does not seek ‘an injunction ordering his immediate or speedier

release into the community.’ Like the Dotson plaintiff, success for

Kyles ‘means at most a new parole hearing at which [Texas] parole

authorities may, in their discretion, decline to shorten his prison

term.’ Under Dotson, Kyles is not precluded by Heck from litigating

his § 1983 claim.” (internal citations to Dotson omitted) ).

Moreover, unlike Jeffrey, when the Plaintiff complained of the

specific error of wrongfully considering arrests to deny him parole,

id., 216 F. App'x at 397, here Plaintiff attacks the facts that he was

found to be ineligible for parole and was denied a hearing in the first

place.

Ultimately, success for the Plaintiff in this case would not

“necessarily demonstrate the invalidity of confinement or its

duration.” Wilkinson, 544 U.S. at 81–82, 125 S. Ct. at 1247–48.

Plaintiff seeks prospective injunctive and declaratory relief; he

would simply be deemed eligible for parole and given a new

hearing, at which time the Parole Board could, in its discretion, deny

Plaintiff the relief he seeks. Consequently, under Wilkinson,

Defendant's motion to dismiss for failure to exhaust must be denied.

Id. at *8–9. Conversely, here, Plaintiff is not merely seeking parole eligibility or a ruling which

would allow the Committee to exercise their discretion as they see fit. Rather, as Plaintiff plainly

argues, he seeks a restoration of the status quo before the May 7th and 10th hearings, an order

which would necessarily (and admittedly) lead to his speedier release and invalidate those prior

hearings.

The Court also agrees with Defendants that this case is analogous to Serio. There, plaintiff

alleged that the Louisiana State Board of Pardons violated his constitutional right to be free from

retaliation when the Board denied him parole substantially in part because he had previously filed

lawsuits against prison officials. Serio, 821 F.2d at 1113. He sought, in part, “an order enjoining

Board members from repeating this practice.” Id. The district court dismissed his complaint as

frivolous because, among other reasons, he failed to exhaust state remedies. Id. The Fifth Circuit

affirmed, holding that the “claims for injunctive relief, being, in effect, an attack on the propriety

of a single defective hearing and seeking an earlier release from custody, cannot be asserted until

state habeas corpus remedies are exhausted.” Id. at 1114. Writing for the majority, Judge Rubin

concluded:

Although Serio does not seek release from confinement in his §

1983 complaint and resolution of his § 1983 claim would require

only that the trial court find that his previous litigiousness played a

“substantial”—but not necessarily a “decisive”—role in the Parole

Board's decision, he patently challenges a “single allegedly deficient

hearing” within the meaning of Alexander. He therefore must

initially pursue his claims through habeas corpus with its attendant

exhaustion requirement.

Id. at 1119.

Similar reasoning applies here. Plaintiff seeks injunctive and declaratory relief which are,

essentially, “attack[s] on” two “defective hearing[s] and seek[s] an earlier release from custody[.]”

Id. at 1114. But, under binding Fifth Circuit precedent, he must first exhaust his state habeas

remedies. Id. Further, while the Serio plaintiff sought prospective relief in the form of preventing

officials from repeating the unlawful practice, id. at 1113, this was not enough to save his claims

from Heck, id. at 1119. For this additional reason, Plaintiff’s claims fail.

The Court also finds this case analogous to Fields, which Defendants also point to for

support. In Fields, plaintiff claimed that he was granted parole, but, on the next day, he “acted in

a strange manner due to a medical condition.” Fields, 2019 WL 3520517, at *2. Plaintiff was later

issued a disciplinary report and found guilty of a violation for intoxication. Id. The disciplinary

appeal was denied. Id. Magistrate Judge Bourgeois then writes:

The plaintiff was scheduled to be released on parole on February 21,

2015, but on March 12, 2015, the plaintiff was informed by

defendant Ranatza that his parole had been revoked due to the

aforementioned disciplinary violation. On June 22, 2015, pursuant

to an administrative appeal, the disciplinary report was dismissed

for lack of evidence. However, the plaintiff's parole was never

reinstated despite multiple hearing requests by the plaintiff.

Id. The Magistrate Judge then found that plaintiff failed to state a claim against Ranatza.

Turning to the plaintiff's claims against defendant Ranatza for

revocation of and failure to reinstate parole, the plaintiff is alleging

that a specific error was made in his case – that defendant Ranatza

wrongly considered the dismissed disciplinary charge to deny him

parole. He is not making a general challenge to parole procedures.

The plaintiff is requesting injunctive, declaratory, and monetary

relief for the actions of defendant Ranatza. Granting such relief

would necessarily imply that his parole was revoked and

subsequently denied in error. The plaintiff may not obtain such relief

under § 1983 until the decision to deny him parole is reversed or

otherwise called into question. As such, the plaintiff fails to state a

claim against defendant Ranatza. See Jeffery v. Owens, 216 F. App'x

396 (5th Cir. 2006).

Id at *3. Judge Jackson adopted the report and recommendation. Fields, 2019 WL 3502910, at

*1.

The Court finds that Fields is on all fours to this case and that Plaintiff’s efforts to

distinguish Fields (on the grounds that that plaintiff was convicted of the underlying disciplinary

violation or that it was unclear what that plaintiff sought) are belied by the above language from

the case. As in Fields, Plaintiff is in essence alleging that the Committee improperly revoked his

parole after it had been granted because he had been issued a disciplinary charge for which he was

ultimately vindicated. See Fields, 2019 WL 3520517, at *2. Like Fields, Plaintiff seeks relief

which “necessarily impl[ies] that his parole was revoked and subsequently denied in error.” Id. at

*3. And, as in that case, “[P]laintiff may not obtain such relief under § 1983 until the decision to

deny him parole is reversed or otherwise called into question.” Id.

For all these reasons, the Court finds that Plaintiff’s claims are barred by the Heck doctrine.

Consequently, Defendants’ motion will be granted, and Plaintiff’s claims will be dismissed.

IV. Leave to Amend

“[A] court ordinarily should not dismiss the complaint except after affording every

opportunity to the plaintiff to state a claim upon which relief might be granted.” Byrd v. Bates, 220

F.2d 480, 482 (5th Cir. 1955). The Fifth Circuit has further stated:

In view of the consequences of dismissal on the complaint alone,

and the pull to decide cases on the merits rather than on the

sufficiency of pleadings, district courts often afford plaintiffs at least

one opportunity to cure pleading deficiencies before dismissing a

case, unless it is clear that the defects are incurable or the plaintiffs

advise the court that they are unwilling or unable to amend in a

manner that will avoid dismissal.

Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305, 329 (5th Cir. 2002).

One leading treatise has further explained:

As the numerous case[s] . . . make clear, dismissal under Rule

12(b)(6) generally is not immediately final or on the merits because

the district court normally will give the plaintiff leave to file an

amended complaint to see if the shortcomings of the original

document can be corrected. The federal rule policy of deciding cases

on the basis of the substantive rights involved rather than on

technicalities requires that the plaintiff be given every opportunity

to cure a formal defect in the pleading. This is true even when the

district judge doubts that the plaintiff will be able to overcome the

shortcomings in the initial pleading. Thus, the cases make it clear

that leave to amend the complaint should be refused only if it

appears to a certainty that the plaintiff cannot state a claim. A district

court's refusal to allow leave to amend is reviewed for abuse of

discretion by the court of appeals. A wise judicial practice (and one

that is commonly followed) would be to allow at least one

amendment regardless of how unpromising the initial pleading

appears because except in unusual circumstances it is unlikely that

the district court will be able to determine conclusively on the face

of a defective pleading whether the plaintiff actually can state a

claim for relief.

5B Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed. 2016).

Here, though Plaintiff previously amended his complaint, he did not do so in response to a

ruling by this Court assessing the sufficiency of his claims. Thus, “though [there is] a compelling

case for denying leave to amend, the Court will act in accordance with the ‘wise judicial practice’

and general rule and grant Plaintiff's request.” Watkins v. Gautreaux, --- F. Supp. 3d ----, No.19-

635, 2021 WL 309139, at *14 (M.D. La. Jan. 28, 2021) (deGravelles, J.) (citing JMCB, LLC v. Bd.

of Commerce & Indus., 336 F. Supp. 3d 620, 641–42 (M.D. La. 2018) (deGravelles, J.); Fetty v.

Louisiana State Bd. of Private Sec. Examiners, ––– F. Supp. 3d ––––, No. 18-517, 2020 WL

520026, at *15 (M.D. La. Jan. 31, 2020) (deGravelles, J.) (“because Plaintiffs did not amend their

complaint in response to a ruling by this Court, and because of the above ‘wise judicial practice,’

the Court will grant Plaintiffs one final opportunity to amend their complaint to state viable claims

against the Board Members.” (citing JMCB, 336 F. Supp. 3d at 641–42)); Murphy v. Bos. Sci.

Corp., No. 18-31, 2018 WL 6046178, at *1 (M.D. La. Nov. 19, 2018) (deGravelles, J.) (reaching

same result) (citing, inter alia, JMCB, supra).

While sides are represented by able counsel, the Court cautions the parties in the following

respect. Plaintiff’s situation is, by the allegations of the FAC, urgent; he remains “in fragile

health.” (FAC ¶ 74, Doc. 12.) Thus, the Court asks both sides to make the next phase of pleadings

as smooth as possible. For example, the Court’s research into this motion preliminarily revealed

that, under recent Fifth Circuit caselaw, “A parole system by itself ‘does not give rise to a

constitutionally protected liberty interest in parole release,’ ” and that this circuit’s “unpublished

authority, which [it] [has found] persuasive . . . holds that Louisiana prisoners do not have a liberty

interest in parole that is protected by the Due Process Clause,” Thomas v. LeBlanc, 846 F. App'x

282, 283 (5th Cir. 2021) (per curiam) (cleaned up). Consequently, Plaintiff should have a well-

founded basis in law for asserting such a claim. Similarly, if Plaintiff clears the Heck hurdle, he

clearly appears to have alleged a First Amendment retaliation claim. (See FAC ¶¶ 40–42, 86–91,

Doc. 12.) And, finally, if Defendants raise qualified immunity, Plaintiff should be prepared to

address that issue with respect to the seemingly unique vindictiveness claim.

Ultimately, the Federal Rules of Civil Procedure “should be construed, administered, and

employed by the court and the parties to secure the just, speedy, and inexpensive determination of

every action and proceeding,” Fed. R. Civ. P. 1 (emphasis added). This rule seems particularly

applicable here, where the liberty of an incarcerated man in “fragile health” is at stake. (FAC ¶ 74,

Doc. 12.)

V. Conclusion

Accordingly,

IT IS ORDERED that the Motion to Dismiss Pursuant to F.R.C.P. Rule 12(b)(6) (Doc.

16) filed by Defendants, the Louisiana Committee on Parole Executive Director Francis Abbott

and Committee members Tony Marabella, Sheryl Ranatza, Jim Wise, Pearl Wise, and Alvin

Rouche, Jr., is GRANTED, and Plaintiff’s claims against Defendants are DISMISSED

WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that Plaintiff is hereby given fourteen (14) days in which

to amend the operative complaint to cure the above deficiencies. Failure to do so will result in

judgment being entered and the case being closed.

Signed in Baton Rouge, Louisiana, on July 20, 2021.

S

JUDG E JOHN W. deGRAVELLES

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA