United States Court of Appeals,
Fifth Circuit.
No. 94-10674
Summary Calendar.
William Steve McGREW, Plaintiff-Appellant,
v.
TEXAS BOARD OF PARDONS & PAROLES, et al., Defendants-Appellees.
March 13, 1995.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:
Texas inmate William Steve McGrew (McGrew) filed this civil
rights suit alleging that he was being incarcerated beyond his
original sentence of ten years in violation of his constitutional
rights. We affirm the district court's dismissal of the 42 U.S.C.
§ 1983 complaint for failure to state a claim and modify the
dismissal of any habeas corpus claim to be without prejudice.
I. FACTS AND PROCEDURAL HISTORY
McGrew, a Texas Department of Criminal Justice (TDCJ)
prisoner, filed a 42 U.S.C. § 1983 complaint against the Texas
Board of Pardons and Parole (Board), its Director, and the Texas
Governor, in her capacity as the executive director of the Board,
alleging that he completed his prison sentence in 1993 but he
remains illegally imprisoned as a result of the application of an
unconstitutional state statute. McGrew is contesting the
constitutionality of Texas Code Crim.Proc.Ann. art. 42.18, § 14(a)
1
(West Supp.1994), which provides that, upon revocation of a
person's mandatory supervision, the person "may be required to
serve the portion remaining of the sentence on which he was
released, such portion remaining to be calculated without credit
for the time from the date of his release to the date of
revocation." McGrew alleged that Governor Richards and Director
Kyle have been made aware of this illegal policy and have not taken
any steps to terminate it. McGrew requested that the district
court order the Board to discharge him from custody and award him
monetary damages.
McGrew filed a motion for a temporary restraining order (TRO)
and/or for a preliminary injunction seeking to restrain the
defendants from enforcing an allegedly unconstitutional statute.
McGrew also filed a motion to file an amended complaint seeking to
have his complaint certified as a class action on behalf of other
inmates whose sentences had been extended by the Board.
The defendants filed a motion to dismiss and for summary
judgment. The defendants presented documentary evidence reflecting
the following facts. McGrew was released on mandatory supervision
on October 18, 1990, and was arrested for aggravated robbery on
January 31, 1993. The Board of Pardons and Paroles issued a "blue"
warrant on February 9, 1993, directing the retaking of plaintiff
for violations of his mandatory supervision. The aggravated
robbery charge was dismissed at the request of the district
attorney because the complainant signed an affidavit of
non-prosecution. The Board decided to proceed with the revocation
2
hearing, which was attended by McGrew and his counsel. McGrew was
found guilty of four violations of his mandatory supervision and
the Board revoked McGrew's mandatory supervision on June 14, 1993.
The defendants argued in their motion that McGrew is properly
serving the remainder of his term under Texas law and that the
Board and the individual defendants are immune from suit. McGrew
filed an opposition to the motion in which he argued that his
mandatory supervision was erroneously and arbitrarily revoked.1
The district court denied McGrew's motion for a TRO and
preliminary injunction and his request to amend his complaint to
proceed as a class action. The district court also determined,
based on the documents submitted by the defendants, that McGrew was
not being illegally imprisoned under Texas law and that McGrew's
complaint failed to state a claim upon which relief can be granted.
The district court granted the defendants' motion to dismiss and
entered judgment in their favor.
II. ANALYSIS
A. WHETHER THE DISTRICT COURT PROPERLY DISMISSED THE § 1983 SUIT
FOR FAILURE TO STATE A CLAIM.
McGrew argues that he has completed his original ten-year
1
McGrew's mandatory supervision was revoked based on his 1)
failure to report to his parole officer; 2) alleged commission
of an aggravated robbery; 3) association with a person of
criminal background; 4) failure to abide by the condition that
he participate in a substance abuse program and present
verification of attendance. McGrew argued that his mandatory
release was erroneously revoked because 1) he was under an
illegal arrest at the time that he failed to report to his parole
officer; 2) the aggravated robbery charge was dismissed; 3) he
was not aware that his companion had been previously convicted;
and 4) he had attended 246 hours of a substance abuse program,
which could be confirmed by the state hospital.
3
sentence and that it is irrelevant that he served part of the time
outside of the institution. McGrew contends that his sentence
could not be extended in the absence of an additional conviction
and sentence. McGrew argues that he did not violate the terms of
his mandatory supervision and, thus, that his sentence continued to
run while he was paroled. McGrew argues that his extended sentence
is not an isolated incident but is the result of the board's
widespread policy imposed on all parolees.
This Court reviews de novo a trial court's dismissal of a
complaint for failure to state a claim upon which relief can be
granted. Giddings v. Chandler, 979 F.2d 1104, 1106 (5th Cir.1992).
The dismissal "may be upheld only if it appears that no relief
could be granted under any set of facts that could be proven
consistent with the allegations." Id. (internal quotation marks
and citation omitted).2
Insofar as McGrew is seeking monetary damages for having been
illegally imprisoned under § 1983, the dismissal of his complaint
should be affirmed although on grounds different than those stated
by the district court. See Bickford v. International Speedway
Corp., 654 F.2d 1028, 1031 (5th Cir.1981) (reversal is
inappropriate if ruling of district court can be affirmed on any
2
Although the district court stated that it was granting the
defendants' motion for failure to state a claim upon which relief
can be granted, it actually addressed the defendants' summary
judgment motion because it considered materials outside of the
pleadings filed by McGrew. See Fed.R.Civ.P. 12(b). However, as
discussed below, the proper determination would have been to
dismiss the complaint for failure to state a claim rather than to
rely upon materials outside of McGrew's complaint.
4
grounds, regardless of whether those grounds were used by district
court).
In Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364,
2372, 129 L.Ed.2d 383 (1994), the Supreme Court held that:
in order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court's issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
(footnote omitted; emphasis in original). Because an action
attacking the validity of parole proceedings calls into question
the fact and duration of confinement,3 it must satisfy the Heck
element. See Heck, --- U.S. at ----, 114 S.Ct. at 2370; Cotton v.
Texas Dep't of Criminal Justice, No. 94-10532 at 2, 35 F.3d 560
(5th Cir. Aug. 26, 1994). McGrew is challenging the Board's policy
of "extending" his sentence and is also alleging that his mandatory
supervision was improperly revoked based on erroneous factual
findings. McGrew alleged that he has not commenced any other
lawsuits in state or federal court dealing with the facts involved
in this proceeding or otherwise related to his imprisonment.
McGrew remains in custody and he has not alleged that the sentence
imposed as a result of the revocation proceedings has been
invalidated by a state or federal court. Therefore, McGrew's
complaint does not state a § 1983 cause of action.
3
Jackson v. Torres, 720 F.2d 877 (5th Cir.1983).
5
Even if a complaint is subject to dismissal under Heck, "it
remains appropriate for district courts to consider the possible
applicability of the doctrine of absolute immunity." Boyd v.
Biggers, 31 F.3d 279, 284 (5th Cir.1994). The Texas Board of
Pardon and Paroles, a division of the Texas Department of Criminal
Justice, is cloaked with Eleventh Amendment immunity. See Voisin's
Oyster House v. Guidry, 799 F.2d 183, 186 (5th Cir.1986).
Therefore, McGrew's § 1983 claim for damages against the Board is
barred by the Eleventh Amendment.
Although parole board members who personally participate in
the "quasi-judicial activity of revoking parole" are absolutely
immune from suit, other executive officers who are responsible for
promulgating the rules and policies governing such proceedings are
entitled only to qualified immunity. See Walter v. Torres, 917
F.2d 1379, 1383 (5th Cir.1990). Because McGrew did not allege that
Richards and Kyle personally participated in his revocation
proceedings, they are not entitled to absolute immunity under
Walter. The qualified immunity issue need not be addressed,
however, because McGrew has not alleged a § 1983 claim against
these defendants in light of Heck.4
B. WHETHER ANY HABEAS CORPUS CLAIM SHOULD HAVE BEEN DISMISSED WITH
PREJUDICE.
4
McGrew's argument that the district court erred in denying
his requests for injunctive relief is moot in light of his
failure to state a cognizable § 1983 claim and the lack of
exhaustion of his habeas claims. See Rocky v. King, 900 F.2d
864, 867 (5th Cir.1990) ("[a]n action is moot where (1) the
controversy is no longer live or (2) the parties lack a personal
stake in its outcome").
6
McGrew's complaint should also be construed as seeking habeas
relief. See Jackson, 720 F.2d at 879; Cotton, No. 94-10532 at 3-
4.5 McGrew's allegations reflect that he has not exhausted his
state remedies and, therefore, insofar as his complaint can be
construed as seeking habeas relief, it must be dismissed for
failure to exhaust. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198,
71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b). The district court's
dismissal of any habeas claim therefore is modified to be a
dismissal without prejudice to McGrew's right to seek federal
habeas relief after his state remedies have been exhausted.
C. WHETHER THE DISTRICT COURT ERRED IN DENYING HIS MOTION TO AMEND
HIS COMPLAINT.
McGrew argues that the district court erred in denying his
motion to amend his complaint because there are a number of other
inmates similarly situated as reflected by the overcrowded
condition of the Texas prisons. An action may be maintained as a
class action if it meets the criteria of "numerosity, commonality,
typicality, and adequacy of representation," the questions of law
or fact involved "predominate" over any issues affecting individual
members of the class, and a class action is the "superior" method
of handling the action. Fed.R.Civ.P. 23(a), (b)(3); see Jenkins
5
See e.g., Wilson v. Foti, 832 F.2d 891 (5th Cir.1987)
(allegation of failure to credit "good time" constitutes § 2254
claim); Beebe v. Phelps, 650 F.2d 774 (5th Cir.1981) (§ 2254
proceeding involving claim of unconstitutional forfeiture of good
time in context of parole revocation); Keenan v. Bennett, 613
F.2d 127 (5th Cir.1980) (loss of "good time" credit treated as
claim under § 2254); Lerma v. Estelle, 585 F.2d 1297 (5th
Cir.1978), cert. denied, 444 U.S. 848, 100 S.Ct. 95, 62 L.Ed.2d
62 (1979) (same).
7
v. Raymark Industries, Inc., 782 F.2d 468, 471 & n. 4 (5th
Cir.1986). "The district court has wide discretion in deciding
whether or not to certify a proposed class. Assuming the court
considers the Rule 23 criteria, we may reverse its decision only
for abuse of discretion." Jenkins, 782 F.2d at 471-72.
McGrew alleged that there are numerous other inmates having an
interest in his action but he did not address any of the other
requirements of Rule 23. Further, because McGrew is proceeding pro
se and his own complaint failed to state a cause of action, his
ability to serve as an adequate representative of the class is
dubious. See Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir.1973)
(under Rule 23(a), the representative parties in a class action
must "fairly and adequately protect the interests of the class").
The district court did not abuse its discretion in denying the
motion to amend the complaint.6
CONCLUSION
For the reasons set forth above, the district court's judgment
dismissing the § 1983 suit for failure to state a claim is
AFFIRMED. The dismissal of the habeas corpus claim is MODIFIED to
be a dismissal without prejudice. AFFIRMED AS MODIFIED.
6
In a reply brief, McGrew argues for the first time that the
Board violated Texas law by failing to revoke his parole within
thirty days of his revocation hearing. McGrew argues that the
hearing was held on May 13, 1993, and the Board did not issue a
decision until June 14, 1993. This Court will not review issues
which are initially raised in a reply brief. United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S.
932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989).
8