United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
October 25, 2006
FOR THE FIFTH CIRCUIT
_________________________
Charles R. Fulbruge III
No. 06-70047 Clerk
_________________________
GREGORY LYNN SUMMERS,
Plaintiff-Appellant,
versus
JAMES EIDSON,
Taylor County District Attorney,
BRUCE ISAACKS,
Denton County Criminal District Attorney,
GEORGETTE ODEN,
Assistant Attorney General,
JAMES FRAZIER, Texas Department of Criminal Justice,
RISSIE OWENS,
Presiding Officer, Texas Board of Pardons and Parole,
BRAD LIVINGSTON,
Executive Director, Texas Department of Criminal Justice,
Defendants-Appellees.
__________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(No. 4:06-CV-3362)
__________________________________________________
Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff Gregory Lynn Summers (“Summers”), a death-sentenced prisoner, appeals the
district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint seeking “a declaratory
*
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 R. 47.5, the court has determined that this opinion should not be published and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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judgment that Defendants must disclose the Brady evidence they currently refuse to release and to
compel release of that evidence” or, in the alternative, “an injunction from this Court preventing
Defendants from depriving Summers of his life without due process of law.” Summers also moves
this court to enjoin defendants from executing Summers prior to resolution of his § 1983 suit. The
district court’s dismissal of Summers’s § 1983 complaint is AFFIRMED and the motion to enjoin
is DENIED AS MOOT.
I. FACTS AND PROCEEDINGS
Summers was convicted of capital murder and sentenced to death in August 1991. Summers
has failed to gain relief through direct appeal as well as state and federal habeas corpus proceedings.
Summers’s execution is set for 6:00 p.m. today, October 25, 2006. Summers previously filed a
separate § 1983 action in state court that was removed to federal court in the Western District of
Texas. This afternoon this court affirmed the dismissal of that action. This morning Summers filed
the instant § 1983 action in federal court in the Southern District of Texas seeking a declaratory
judgment or, in the alternative, an injunction. The district court dismissed this complaint sua sponte.
Summers appealed.
II. STANDARD OF REVIEW
This court reviews a district court’s sua sponte decision to dismiss a complaint de novo.
White v. Johnson, 429 F.3d 572, 573 (5th Cir. 2005).
III. DISCUSSION
“[A] § 1983 challenge is a proper remedy for a state prisoner who is making a constitutional
challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser
v. Rodriguez, 411 U.S. 475, 499 (1973). “[W]hen a state prisoner is challenging the very fact or
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duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled
to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ
of habeas corpus.” Id. at 500.
If, however, “the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such determinations, or
called into question by a federal court’s issuance of a writ of habeas corpus [under] 28 U.S.C. §
2254,” this court may consider a § 1983 claim relating to the conviction or sentence. Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994). Use of § 1983 to challenge a conviction outside of these
circumstances, which are not present here, is prohibited to the extent that a judgment in favor of the
plaintiff would “necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at
486–87. This rule applies to injunctive as well as monetary relief. See Kutzner v. Montgomery
County, 303 F.3d 339, 340–41 (5th Cir. 2002).
Summers argues that the relief sought, namely that this court require that William
Spaulding’s parole records be turned over to Summers, would not necessarily imply the invalidity
of his conviction or sentence because a habeas court would then have to determine whether the
failure to disclose these records constituted a Brady violation and therefore whether or not to
overturn his conviction. Kutzner, however, forecloses this argument. 303 F.3d at 340–41.
In Kutzner, a death-sentenced state prisoner sought to compel “the State to produce
biological evidence for DNA testing.” Id. at 340. Kutzner argued that the officials “refused to
release biological evidence introduced at his trial for DNA testing and thereby ‘prevented Plaintiff
from gaining access to exculpatory evidence which could exclude him as a perpetrator.’” Id.
(brackets omitted). This court held that “[p]lainly, the allegations seek to undermine Kutzner’s
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conviction or the consequences flowing therefrom, such as the availability of an executive clemency
petition.” Id. The court therefore held that the complaint was not a valid use of § 1983 because
“claims seeking to attack the fact or duration of confinement, as well as claims which are ‘so
intertwined’ with attacks on confinement that their success would ‘necessarily imply’ revocation
or modification of confinement, must be brought as habeas petitions and not under § 1983.” Id. at
341.1
Summers’s argument, that the injunction sought would not necessarily imply the invalidity
of his conviction or sentence because the withholding of the documents he seeks might not
constitute a Brady violation could just as well be applied to the facts in Kutzner.
IV. CONCLUSION
For the reasons stated above, the district court’s sua sponte dismissal of Summers’s § 1983
complaint is AFFIRMED. The motion to enjoin the defendants from executing Summers prior to
resolution of his § 1983 suit is DENIED AS MOOT.
1
Summers argues that reliance on “Kutzner is also misplaced” because Kutzner relied on Martinez
v. Texas Court of Criminal Appeals, 292 F.3d 417 (5th Cir. 2002). Summers argues that “in the
wake of Nelson v. Campbell, 541 U.S. 637 (2004) . . . Martinez is no longer good law.” This is not
correct. While Nelson did abrogate Martinez to the extent that Martinez held that § 1983 claims
categorically could not be used to challenge the method of lethal injection, it did not overrule the
case in its entirety or the portion relied on by this court in Kutzner. See Harris v. Johnson, 376 F.3d
414, 416 (5th Cir. 2004) (stating that the Fifth Circuit “interpreted [Nelson] as overturning
Martinez’s categorical bar on § 1983 method-of execution suits”).
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