Dears v. Scott

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

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No. 95-10357
Conference Calendar
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EDGAR LEE DEARS,

Plaintiff-Appellant,

versus

HORACE SCOTT, Parole Supervisor;
CHARLES MARTIN, Hearing Officer,

Defendants-Appellees.

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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:95-CV-209-Y
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August 24, 1995

Before KING, JOLLY, and WIENER, Circuit Judges.

PER CURIAM:*

Edgar Lee Dears challenges the dismissal of his civil rights

complaint. A complaint filed in forma pauperis may be dismissed

as frivolous if it lacks an arguable basis in fact or law. A

§ 1915(d) dismissal is reviewed for abuse of discretion. Ancar

v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th Cir. 1992).

*
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that this opinion should not be published.
 No. 95-10357
-2-

Claims alleging "harm caused by actions whose unlawfulness

would render a conviction or sentence invalid" cannot be brought

under § 1983 unless that "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." Heck v.

Humphrey, 114 S. Ct. 2364, 2372 (1994). Heck applies to

proceedings which call into question the fact or duration of

parole. Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995),

petition for cert. filed (U.S. May 15, 1995) (No. 94-9704). When

a claim may be dismissed on the ground of absolute immunity, that

route should be taken without considering a Heck dismissal. Boyd

v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994).

Dears does not allege that his sentence or any revocation

proceeding has been reversed, expunged, or set aside by a state

court, or called into question by a federal court's issuance of a

writ of habeas corpus. Moreover, Martin's participation in the

quasi-judicial activity of revoking parole afforded him absolute

immunity from damages. See Walter v. Torres, 917 F.2d 1379, 1383

(5th Cir. 1990). Therefore, the district court did not abuse its

discretion when it dismissed his complaint.

AFFIRMED.