UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 95-40141
Summary Calendar
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ROY COLGROVE,
Plaintiff-Appellant,
VERSUS
JAMES A. COLLINS, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(6:94-CV-1067)
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(June 26, 1995)
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:1
Colgrove challenges the district court's dismissal of his pro
se and in forma pauperis § 1983 suit pursuant to 28 U.S.C. §
1915(d). The district court dismissed Colgrove's complaint with
prejudice. Because Colgrove fails to present a justiciable
controversy, we modify the judgment so that Colgrove's complaint is
1
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
dismissed without prejudice for lack of jurisdiction. We affirm
the district court's judgment as modified.
I.
Ray Colgrove, a Texas state inmate, filed this 42 U.S.C.
§ 1983 action against various Texas Department of Criminal Justice
("TDCJ") officials challenging the adoption of a November 1993 TDCJ
policy prohibiting the restoration of forfeited "good time"
credits. Prior to November 1993, TDCJ policy apparently provided
that good time credits forfeited as a result of a disciplinary
action would be restored if an inmate remained free of discipline
for a period of ninety days. The new policy provided that
forfeited good time credits would no longer be restored. Colgrove
filed this § 1983 action alleging that the new policy is an
unconstitutional ex post facto provision because it retroactively
increases the length of his sentence by decreasing the likelihood
that he will accumulate good time credits toward an early release.
Colgrove also alleged that the new policy violates the Due Process
Clause.
The magistrate judge recommended that Colgrove's complaint be
dismissed as frivolous pursuant to § 1915(d). The district court
subsequently adopted the magistrate judge's recommendation and
dismissed Colgrove's complaint with prejudice. Colgrove timely
appealed.
II.
We need not reach the merits of Colgrove's claims that the
2
TDCJ's new policy violates the Ex Post Facto and Due Process
Clauses because Colgrove lacks standing to assert these claims.
Under Article III, standing to sue is a threshold jurisdictional
issue which we may address sua sponte. Warth v. Seldin, 422 U.S.
490, 498 (1975). In order to establish standing, Colgrove must
prove that he personally suffered "injury in fact" from the TDCJ's
policy change. Id. This harm must be "actual or imminent," not
merely conjectural or hypothetical. Whitmore v. Arkansas, 495 U.S.
149, 155 (1990).
Colgrove does not allege that the TDCJ's new policy actually
prevented him from redeeming forfeited good time credits or that an
adverse application of the policy to his case is imminent. Rather,
Colgrove merely speculates that the policy might eventually harm
him if he were to forfeit good time credits as a result of a future
prison disciplinary proceeding. Indeed, if Colgrove remains free
of discipline, he may never suffer any harm from the TDCJ's new
policy. Such a speculative claim of injury is insufficient to
satisfy Article III's requirements for standing. Id. We therefore
conclude that the district court did not err in dismissing
Colgrove's complaint.2 Because this dismissal is based on a lack
of subject matter jurisdiction, the district court's judgment must
2
Neither the magistrate judge nor the district court held
a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), prior to dismissing Colgrove's complaint. Colgrove contends
that this was an abuse of discretion. However, Colgrove fails to
explain how a Spears hearing would allow him to establish standing.
Rather, he merely states that a Spears hearing was necessary to
prove his claim that the TDCJ's policy is unconstitutional. As we
explained above, Colgrove lacks standing to assert this claim.
3
be modified to reflect that Colgrove's claims are dismissed without
prejudice. See Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.
1994).
AFFIRMED as modified.
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