IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-40191
Summary Calendar
JOSEPH ALFRED ROME, JR.,
Plaintiff-Appellant,
versus
DAN MORALES,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
(6:94 CV 450)
(September 20, 1995)
Before HIGGINBOTHAM, THORNBERRY, AND BARKSDALE, Circuit Judges.
PER CURIAM:*
Appellant, Joseph Alfred Rome, Jr., an inmate currently
incarcerated in the Institutional Division of the Texas Department
of Criminal Justice ("TDCJ"), appeals the dismissal of his pro se,
in forma pauperis civil rights complaint. 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should not be published.
Background
Rome filed a class-action suit against Morales and former
Governor Ann Richards,1 seeking declaratory and monetary relief
pursuant to 42 U.S.C. § 1983 (1988), for alleged constitutional
violations regarding the manner in which the state manages its
good-time system. He asserts, inter alia, that TCDJ's policy of
failing to restore forfeited good-time constitutes an ex post facto
violation. Rome also argues that the policy requires inmates to
serve the same prison time twice, thus resulting in double
jeopardy.
The magistrate judge found that Rome had failed to state a
claim upon which relief could be granted and recommended dismissal.
The district court adopted the magistrate's recommendations, found
Rome had stated no constitutional violation, and dismissed the
complaint with prejudice.
Discussion
Rome's primary contention centers on TEX. GOV'T CODE
§ 498.004(b), which was not in effect at the time he committed his
offense, and thus he claims its application to his sentence
constitutes an ex post facto violation. He contends that under
former TEX. CODE CRIM. PROC. art. 42.12, § 23, all credits he received
became part of his sentence and could not be lost either as a
result of the revocation of his parole in the form of mandatory
1
The complaint as to defendant Richards was dismissed by the
district court as "frivolous as a matter of law." Rome has not
appealed this ruling.
2
supervision or because of prison disciplinary proceedings. He also
asserts that TCDJ's policy violated the Texas Constitution's
prohibition on retroactive application of penal laws, and concludes
that he is entitled to be discharged fully because he has served
four years flat time and eight years of good time.
Rome also complains that he is serving the same time twice
because he lost his previously earned good-time credits following
the revocation of his mandatory supervision. He argues that,
because he did not, at the time of his release, sign the contract
agreeing to mandatory supervision, he should not have been bound by
its terms. Rome asserts the contract would have retrospectively
deprived him of calendar time previously served, and argues the
contract provisions result in ex post facto and double jeopardy
violations.
In addition, Rome argues that the district court erred in
dismissing his claim that Texas should pay money to inmates for
work performed while incarcerated. He argues that the state cannot
impose a sentence greater than the one imposed at trial, and that
he was not sentenced to a term of labor.
Finally, Rome has made certain other arguments during this
lawsuit. Rome included in his opening brief's list of issues a
claim that Texas was using county and state jails to deprive
prisoners of good time credits. In his reply brief, Rome argues
that Texas denied him due process of law by failing to inform him
that his good time credits would be lost during his eight-month
3
stay in county jail and by delaying his suit to regain his good
time credits.
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). We are, however, free to uphold the
judgment below on any legal grounds supported by the record.
Forsyth v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir.), cert. denied,
115 S. Ct. 195 (1994). We rely on this last principle in disposing
of most of Rome's appeal.
Rome's federal ex post facto and double jeopardy claims, as
well as his arguments based on the Texas Constitution, have one
thing in common: all implicate the length of time Rome would spend
within the TDCJ system. At bottom, Rome's contention is that Texas
has kept or will keep him incarcerated for too long. That claim is
not cognizable in a suit under § 1983. The sole remedy for
challenges to the fact or length of incarceration is a habeas
proceeding under 28 U.S.C. § 2254 (1988). Heck v. Humphrey, 114 S.
Ct. 2364 (1994) (construing Preiser v. Rodriguez, 411 U.S. 475
(1973)).2 Prisoners may invoke § 1983 in, for instance, challenges
2
The policy behind this doctrine is to preserve the habeas
requirement that a state prisoner exhaust state remedies before
filing in federal court. See 28 U.S.C. § 2254(b-c) (1988). A
§ 1983 plaintiff need not exhaust state remedies under most
circumstances. Monroe v. Pape, 365 U.S. 167 (1961).
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to the adequacy of state procedures designed to determine the
availability or duration of good time credits. The remedy in such
a case is an order to a state correctional authority to implement
a particular procedure, not an order to restore good time credits.
The latter sort of order, because it affects the length of a
prisoner's stay in a state corrections system, is available only in
a habeas proceeding.
Rome's argument that prisoners should receive payment for work
in prison lacks merit. Texas may constitutionally compel inmates
to work without pay. Wendt v. Lynaugh, 841 F.2d 619, 620-21 (5th
Cir. 1988).
Rome has defaulted on his remaining claims. Although he
included an issue concerning county and state jails in his opening
brief, he did not explain or argue this contention in the body of
the brief itself and thus has abandoned it in this appeal. See
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). We will not
consider Rome's due process argument because he raised it for the
first time in his reply brief to this court. See United States v.
Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932
(1989).
AFFIRMED.
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