IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-40003
Summary Calendar
_____________________
ERIC ANTONIO HOWARD
Plaintiff-Appellant,
v.
CHARLES C. BAILEY, ET AL.
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(2:93 CV 99)
August 16, 1995
Before KING, SMITH, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Howard, proceeding pro se and in forma pauperis, brought
suit under 18 U.S.C. § 1983 against Lt. Kenneth Sparks, Officer
Jim Bayuk, Titus County District Attorney Charles C. Bailey, and
Linda Hammond. Howard alleged that the four defendants committed
certain unlawful acts which culminated in the revocation of his
parole. The district court granted summary judgment with regard
*
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that this opinion should not be published.
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to each of the defendants, and Howard now appeals. We affirm in
part and reverse and remand in part.
I. BACKGROUND
In March 1992, Lt. Sparks arrested Howard for burglary of a
habitation. District Attorney Bailey sent a letter to Howard's
parole officer, Hammond, informing her of Howard's arrest.
Hammond began parole revocation proceedings soon thereafter.
Bailey's letter to Hammond stated that the alleged victim of the
burglary was an elderly woman. In fact, Beulah Neal, the
complainant and alleged victim, was a young woman.1
While Howard was still in jail on the burglary charges,
Officer Bayuk charged him with unlawful delivery of cocaine as
the result of an undercover investigation which Bayuk had
conducted. Although the State later withdrew the burglary charge
and a jury acquitted Howard of the drug charge, the parole board
found by a preponderance of the evidence that Howard had
burglarized the dwelling. Consequently, the parole board revoked
Howard's parole.
After Howard filed his initial complaint, the magistrate
judge conducted a hearing pursuant to Spears v. McCotter, 766
F.2d 179 (5th Cir. 1985), and allowed Howard to proceed in forma
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Howard contends that the alleged victim's age was a
decisive factor in the revocation of his parole. Additionally,
Howard contends that the error in the district attorney's letter
is evidence of his claim of malicious prosecution.
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pauperis. Each of the defendants subsequently filed a motion for
summary judgment. The magistrate judge then recommended that the
defendants' motions be granted on the ground that Howard's claims
were premature under Heck v. Humphrey, 114 S. Ct. 2364 (1994).
After receiving a copy of the magistrate judge's report, Howard
filed written objections. Nevertheless, the district court found
Howard's objections untimely and dismissed the suit without
prejudice. The district court held that Howard's claims under
§ 1983 were premature because he was leveling a civil attack on
the legality of his incarceration without first having had that
incarceration invalidated.
On appeal, Howard contends that his civil rights claim under
§ 1983 accrued at the time the burglary and drug charges against
him were invalidated. Because of this, Howard alleges, the four
defendants are not free from liability under § 1983 and the
district court erred in granting summary judgment on his claims.
As we construe Howard's complaint, he claims that: (1) Lt. Sparks
and Officer Bayuk are liable for false arrest and false
imprisonment; (2) District Attorney Bailey is liable for false
arrest, false imprisonment, and malicious prosecution; and (3)
Hammond is liable for false imprisonment and malicious
prosecution. Howard also attacks the district court's refusal to
allow him to amend his complaint and its finding that Howard's
objections to the magistrate judge's recommendation were
untimely. Finally, Howard asserts that the magistrate judge and
district court were biased against him.
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II. STANDARD OF REVIEW
We review the granting of summary judgment de novo, applying
the same criteria used by the district court in the first
instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.
1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994).
First, we consult the applicable law to ascertain the material
factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.
1992). We then review the evidence bearing on those issues,
viewing the facts and inferences to be drawn therefrom in the
light most favorable to the nonmoving party. Lemelle v.
Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC
v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114
S. Ct. 2673 (1994). Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
FED. R. CIV. P. 56(c).
Under Rule 56(c), the party moving for summary judgment
bears the initial burden of informing the district court of the
basis for its motion and identifying the portions of the record
that it believes demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.
1994). If the moving party meets its burden, the burden shifts
to the non-moving party to establish the existence of a genuine
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issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio,
475 U.S. 574, 585-87 (1986); Norman, 19 F.3d at 1023. The burden
on the non-moving party is to do more than simply show that there
is some metaphysical doubt as to the material facts. Matsushita,
475 U.S. at 586.
III. ANALYSIS
When a state prisoner pursues a § 1983 suit, a district court
must consider whether a judgment in favor of the prisoner would
imply the invalidity of his conviction. Heck v. Humphrey, 114 S.
Ct. 2364, 2372 (1994). Consequently, a § 1983 plaintiff must
first demonstrate that a conviction has been invalidated before
recovering damages for an allegedly unconstitutional conviction.
Id. A claim based on a conviction that has not been so
invalidated is not cognizable under § 1983. Id. A parole
revocation proceeding concerns the fact and duration of
confinement, and, therefore, it must meet the requirements of
Heck. Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995)
(holding that a judgment in favor of a plaintiff on his illegal
seizure claim would necessarily imply the invalidity of the
revocation of his probation and parole and that Heck therefore
applies to parole revocation proceedings). In the case at bar,
Howard remains in custody and he has not alleged that the
sentence imposed as a result of his parole revocation proceedings
has been invalidated by a state or federal court. Accordingly,
Howard fails to state a § 1983 cause of action for those claims
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which implicate the validity of his parole revocation. See
Jackson v. Vannoy, 49 F.3d at 177; see also McGrew v. Texas Bd.
of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (holding
that so long as a plaintiff "has not alleged that the sentence
imposed as a result of the revocation proceedings has been
invalidated by a state or federal court . . . [his] complaint
does not state a § 1983 cause of action").
Specifically, Howard's claims against his parole officer,
Hammond, for false imprisonment and for malicious prosecution
concern the time and duration of his confinement, and thus call
into question the validity of his parole revocation. Because
Howard has not demonstrated that his parole revocation has been
invalidated, the district court's grant of summary judgment with
regard to Hammond was proper.
Howard's claims against Lt. Sparks and Officer Bayuk,
however, do not necessarily implicate the validity of his parole
revocation. If a plaintiff's § 1983 action will not implicate
the validity of an outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit. Heck, 114 S. Ct. at 2372-
73. In particular, we have held that a claim of unlawful arrest
does not necessarily implicate the validity of a criminal
prosecution following the arrest. See Mackey v. Dickson, 47
F.3d. 744, 746 (5th Cir. 1995) (citing United States v. Wilson,
732 F.2d 404, 410 (5th Cir.), cert. denied, 469 U.S. 1099
(1984)). For example, it is not clear from the record whether
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Lt. Sparks or Officer Bayuk obtained any evidence as part of
their allegedly unlawful arrests which would necessarily
implicate Howard's subsequent parole revocation. Thus, Howard's
claims against Lt. Sparks and Officer Bayuk may be constitutional
violations independent of any claim Howard has regarding his
parole revocation. As a consequence, the district court erred in
dismissing Howard's claims of unlawful arrest against Lt. Sparks
and Officer Bayuk pursuant to Heck. The district court's
judgment with regard to Howard's claims against these two
defendants is therefore vacated and remanded to the district
court for further consideration.
As with Lt. Sparks and Officer Bayuk, the district court
erred in dismissing Howard's claim of false arrest against
District Attorney Bailey on the basis of Heck. Theoretically, if
Bailey were liable for false arrest, it would not necessarily
call into question the validity of Howard's parole revocation.
Nonetheless, the district court's error is harmless because
Bailey, acting in his role of district attorney, is shielded by
the doctrine of absolute immunity. Prosecutors are immune from §
1983 suits for acts that are within the scope of their
prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409 (1976).
Prosecutorial immunity has been extended to a prosecutor's
actions in initiating, investigating, and pursuing a criminal
prosecution. McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir.
1984); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980).
In the case at bar, it is not disputed that Bailey was acting
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within his role as district attorney. As a result, the district
court's grant of summary judgment in favor of Bailey is affirmed.
Howard also attacks the decisions of both the magistrate
judge and the district court to deny him the opportunity to amend
his complaint. Howard complains that he was unable to properly
raise his claims of false arrest, false imprisonment, and
malicious prosecution. We review a trial court's denial of leave
to amend a complaint for abuse of discretion. Ashe v. Corley,
992 F.2d 540, 542 (5th Cir. 1993). Under Fed. R. Civ. P. 15(a),
a party may amend its pleading once as a matter of course at any
time before a responsive pleading is served; otherwise, an
amendment must be made by leave of court or consent of the
adverse party. Leave to amend should be freely granted when
justice so requires. Id. However, we will affirm the denial of
a motion to amend when the motion is untimely filed or when
amendment would be futile. Avatar Exploration, Inc. v. Chevron,
U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). Furthermore, if
a complaint as amended is subject to dismissal, leave to amend
need not be granted. Pan-Islamic Trade Corp. v. Exxon Corp., 632
F.2d 539, 546 (5th Cir. 1980), cert denied, 454 U.S. 927 (1981).
In the case at bar, Howard sought to amend his complaint in
order to specify the acts which the defendants allegedly
committed against him. The basis of Howard's claim, however,
remains the same in his original complaint and in his amendments;
the two police officers and the district attorney are liable for
false arrest and false imprisonment, the district attorney is
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further liable for malicious prosecution, and the parole officer
is liable for false imprisonment and malicious prosecution. The
amendments Howard sought would be futile as to the charges
against Bailey and Hammond since Howard's claims against them are
barred. If, however, Howard wishes to further amend his complaint
while pursuing his claims against Lt. Sparks and Officer Bayuk,
he is free to request the court's leave to do so.
Howard also attacks the district court's failure to conduct
a de novo review of his objections to the magistrate judge's
report. Under 28 U.S.C. § 636(b)(1)(C):
[W]ithin ten days after being served with a copy [of the
proposed findings and recommendations], any party may
serve and file written objections to [the magistrate judge's]
proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de
novo determination of those portions of the report
or specified proposed findings or recommendations to which
objection is made.
From the dates stamped on Howard's objections, it appears that
the objections were indeed untimely. A pro se plaintiff's
written objections to a magistrate judge's report and
recommendation are deemed filed, however, when the document is
forwarded to prison officials for delivery to the district court.
Thompson v. Rasberry, 993 F.2d 513, 513 (5th Cir. 1993). It is
not clear from the record exactly when Howard forwarded his
objections to the prison officials, nor does the trial court
appear to have requested this information from Howard. If, in
fact, Howard filed his objections in a timely manner, then the
trial court erred in not considering Howard's objections. Any
possible error, however, is harmless because, in his objections,
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Howard fails to raise any new issue of material fact with regard
to the defendants. See Smith v. Collins, 964 F.2d 483, 485 (5th
Cir. 1992)(applying harmless error analysis when a plaintiff
raises no new factual objections to a magistrate's report but
merely reurges the same legal arguments raised in his original
complaint).
Howard's final issue on appeal concerns the district court's
and the magistrate judge's alleged bias against him. Howard
claims that this bias is evident in the district court's denial
of his motion to amend his complaint and in the failure of both
courts to rule on several pending motions. Adverse judicial
proceedings, however, will not ordinarily support a claim of
bias. See Liteky v. United States, 114 S. Ct. 1147, 1157 (1994).
A court's rulings may only support a claim of judicial bias if:
(1) they reveal an opinion based on an extrajudicial source; and
(2) they demonstrate such a high degree of antagonism as to make
fair judgment impossible. Id. Howard does not allege facts
which would implicate either exception. Although the district
court erred in its reliance on Heck to dismiss some of Howard's
claims, such error does not evidence a bias against the
plaintiff.
IV. CONCLUSION
For the foregoing reasons, the district court's grant of
summary judgment is REVERSED and REMANDED on Howard's claims
against Lt. Sparks and Officer Bayuk. In all other respects, the
district court's grant of summary judgment is AFFIRMED.
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