UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40167
Summary Calendar
JOSEPH ALFRED ROME, JR.,
Plaintiff-Appellant,
and
ELIZABETH B. ROME, JOSEPH A. ROME, SAMANTHA ROME,
Plaintiffs,
versus
CARLA QUINN, et al.,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(4:94-CV-288)
(June 14, 1995)
Before THORNBERRY, HIGGINBOTHAM AND BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant, Joseph A. Rome, Jr., is an inmate currently
incarcerated in the Institutional Division of the Texas Department
of Criminal Justice (TDCJ). He appeals the district court's
dismissal as frivolous his pro se, in forma pauperis civil rights
action. We affirm.
*
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should not be published.
I. BACKGROUND AND RELEVANT FACTS
On April 8, 1988, Rome was released to parole in the form of
mandatory supervision after serving four years of a twelve year
sentence. He asserts he did not acknowledge his release as
required by state law, and states that on April 12, 1988, he filed
a state habeas corpus application seeking full discharge. TEX.
CODE CRIM. PROC. Art. 11.07, § 2, et seq. Shortly thereafter, a
pre-revocation warrant alleging Rome had violated conditions of his
release was issued by the Texas Board of Pardons and Paroles. Rome
asserts the state district court recommended that relief be
granted; however, because the pre-revocation warrant was withdrawn
during pendency of his state writ, the Texas Court of Criminal
Appeals denied said writ without written order in July 1988. On
April 24, 1993, he was arrested pursuant to the warrant which he
claims was withdrawn in 1988 and, after a hearing, his parole in
the form of mandatory supervision was revoked.
Rome filed this 42 U.S.C. § 1983 action against Appellees
Carla Quinn and Jacalyn Banta, employees of the TDCJ, Pardons and
Paroles Division, seeking a declaratory judgment that they had
maliciously abused the legal process by denying him due process and
due course of law, failing to allow him to assert any defenses, and
using a perjured affidavit at the revocation proceeding.1 In
1
Rome has not pursued on appeal his request for declaratory
relief. Consequently, he has abandoned this claim. See Reeves v.
Collins, 27 F.3d 174, 176 (5th Cir. 1994).
2
addition, he sought damages for false imprisonment and punitive
damages.2
The magistrate judge first found that because Rome had
challenged the fact or duration of his confinement rather than
conditions of confinement, the claim should be litigated as a
habeas corpus action. Prieser v. Rodriguez, 411 U.S. 475, 484
(1973).3 The magistrate then recommended the complaint be
dismissed as frivolous because Rome had failed to allege an
arguable § 1983 claim in light of Heck v. Humphrey, U.S. ,
114 S.Ct. 2364 (1994). He also recommended that Rome be warned
that he will be subject to sanctions if he continues to file
frivolous or malicious suits. The district court adopted the
magistrate judge's recommendations, and ordered the cause dismissed
with prejudice pursuant to 28 U.S.C. § 1915(d).
II. DISCUSSION
A. Allegations
Rome argues on appeal that the process used to revoke his
parole was unconstitutional and beyond the authority of the Board.
He seeks damages for violation of his constitutional rights in
connection with the revocation proceeding and does not attack his
conviction or sentence. Specifically, he makes the following
2
The complaint also sought compensatory and punitive damages
on behalf of Rome's family. The family members have not appealed
the district court's dismissal of this cause.
3
The magistrate judge also noted that this same action had
been dismissed without prejudice to allow Appellant to exhaust
appropriate habeas corpus remedies.
3
arguments: the Board had no authority to revoke parole because he
never signed the "Mandatory Supervision Contract;" the Board
withdrew the pre-revocation warrant in order to avoid a hearing by
the Texas Court of Criminal Appeals on his state habeas
application; the revocation process was unconstitutional because
there were no Board members present and parole was revoked by an
unconstitutionally appointed hearing officer; he was denied
compulsory process at the hearing and his right to a speedy hearing
was violated, and; the "District and Circuit Courts" have protected
the unconstitutional state laws and the Board's failure to conform
to state laws and the constitution.
B. Analysis
Our review of a district court's dismissal of an in forma
pauperis complaint as frivolous is based on an abuse of discretion
standard. Denton v. Hernandez, U.S. , 112 S.Ct. 1728, 1734
(1992). We find no error in the district court's dismissal of the
instant complaint.
In Heck v. Humphrey, the Supreme Court has recently held that
in order to recover damages for harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, the
plaintiff in a § 1983 action must prove the conviction or sentence
was reversed on 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. 114 S.Ct. at 2372. A claim for damages bearing
4
that relationship to the conviction or sentence which has not been
so invalidated is not cognizable by a § 1983 action. Ibid.
Rome does not demonstrate that his conviction or sentence has
been invalidated. Nor does he allege that his conviction or
sentence has been reversed, expunged, set aside by a state court,
or called into question by a federal court's issuance of a writ of
habeas corpus.
Rome argues Heck is inapplicable to the instant cause because
he is not attacking the validity of his conviction or sentence.
However, this court has recently held a similar complaint not
cognizable under § 1983, and properly dismissed under Heck's
rationale. See Cotton v. Texas Dept. of Criminal Justice, No. 94-
10532 (5th Cir. August 26, 1994) (unpublished). Citing Jackson v.
Torres, 720 F.2d 877 (5th Cir. 1983), we first noted that an action
attacking the validity of parole proceedings calls into question
the fact and duration of confinement. Cotton, slip op. at 2. We
then held that because Cotton had sought money damages for alleged
improprieties in his parole revocation proceedings, this claim was
precisely the type of suit proscribed by Heck. Id., slip op. at 3.
We also held that because Cotton sued members of the Parole Board
only for actions taken in their official capacity, and consequently
they enjoyed eleventh amendment immunity, Cotton's claim lacked an
arguable basis in law. Ibid.
Since Rome's seeks monetary damages for alleged improprieties
in his parole revocation proceeding, this claim is not cognizable
in a § 1983 action. Also, since his claim was against employees of
5
the TDCJ Pardons and Paroles Division, his claim lacked an arguable
basis in fact or law.4
III. CONCLUSION
The district court did not abuse its discretion in dismissing
the cause as frivolous.
AFFIRMED.
4
Alternatively, the district court could have dismissed this
cause because the Appellees are arguably absolutely immune from
liability in a § 1983 action. Thomas v. Scherer, No. 94-11006,
slip op. at 3 (5th Cir. March 22, 1995) (unpublished). See also,
Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); Walter v.
Torres, 917 F.2d 1379, 1383 (5th Cir. 1990).
6