IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-20507
Summary Calendar
JOHN O’NEAL HENRY,
Plaintiff-Appellant,
versus
BOARD OF PARDONS AND PAROLES; TEXAS
DEPARTMENT OF CRIMINAL JUSTICE-INSTITUTIONAL DIVISION,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-01-CV-279
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September 17, 2001
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
John O'Neal Henry, Texas prisoner # 324238, seeks to proceed
in forma pauperis (“IFP”) in the appeal of the dismissal of his
civil rights complaint as frivolous under 28 U.S.C. § 1915. By
moving for IFP, Henry is challenging the district court’s
certification that IFP status should not be granted on appeal
because his appeal is not taken in good faith. See Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997).
*
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that this opinion should not be published and is not precedent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.
No. 01-20507
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Henry challenges the district court's decision to dismiss as
frivolous his claim that his constitutional rights were violated
when Tex. Code Crim. P. art. 42.18, pertaining to parole, was
applied to him instead of Tex. Code Crim. P. art. 42.12, which
applied at the time of his conviction. Henry had alleged that
his rights were violated because article 42.18 requires parolees
to pay a supervisory parole fee and does not mandate annual
parole review. Henry also challenges the district court's
decision to dismiss as frivolous his claim that his rights under
Title II of the Americans with Disabilities Act ("ADA") were
violated because he has been denied access to a substance abuse
program on account of his hearing impairment. Henry's IFP motion
does not challenge the district court's dismissal as frivolous of
his race discrimination claim, Rehabilitation Act ("RA") claim,
and claims stemming from the alleged denial of good time and
street time credits, and thus any arguments in that regard are
deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25
(5th Cir. 1993).
The district court did not abuse its discretion in
dismissing as frivolous Henry's claim that application of Tex.
Code Crim. P. art. 42.18 to him is unconstitutional because it
allows for parole review at greater than one-year intervals. See
Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995).
The district court abused its discretion in dismissing as
frivolous Henry's claim that application of Tex. Code Crim. P.
art. 42.18 to him violates the Ex Post Facto Clause because the
statute requires payment of a supervisory parole fee that was not
No. 01-20507
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required by Tex. Code Crim. P. art. 42.12. See Sheppard v.
Louisiana Bd. of Parole, 873 F.2d 761, 764-65 (5th Cir.
1989)(citing Murray v. Phelps, No. 88-3302 (February 3rd, 1989),
in attached Appendix I)(remanding for examination by district
court a 42 U.S.C. § 1983 claim asserting that a Louisiana statute
requiring parolees to pay a supervisory violated the Ex Post
Facto Clause).
The district court also abused its discretion in dismissing
Henry's ADA claim in reliance on Board of Trustees of Univ. of
Alabama v. Garrett, 531 U.S. 356, 121 S. Ct. 955 (2001). That
case held that Title I of the ADA did not abrogate the states'
Eleventh Amendment immunity from suit for money damages, but the
Court did not decide whether a suit for damages may be maintained
under Title II of the ADA. See Garrett, 121 S. Ct. at 960 n.1.
This court has not decided whether Garrett applies to Title II
ADA suits. See Shaboon v. Duncan, 252 F.3d 722, 757 (5th Cir.
2001). Further, liberally construed, Henry's complaint sought
injunctive as well as monetary relief. The district court's
dismissal of the claim as frivolous without further factual
development was premature. See Gartrell v. Gaylor, 981 F.2d 254,
259 (5th Cir. 1993).
Henry’s motion for IFP is GRANTED. The district court’s
dismissal as frivolous of Henry’s claims concerning interval of
parole review, race discrimination, the RA, and the alleged
denial of good time and street time credits are AFFIRMED. The
district court's dismissal as frivolous of Henry's 42 U.S.C.
No. 01-20507
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§ 1983 supervisory-parole-fee claim and ADA claim is VACATED and
REMANDED.
MOTION FOR IFP GRANTED; AFFIRMED IN PART; VACATED AND
REMANDED IN PART.