UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 94-50174
(Summary Calendar)
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JAMES SKIP HULSEY,
Plaintiff-Appellant,
versus
BOB OWENS and
HARRY C. GREEN,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
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August 17, 1995
Before SMITH, EMILIO M. GARZA, and PARKER, Circuit Judges.
PER CURIAM:
James Skip Hulsey, an inmate in the Texas Department of
Criminal Justice's Institutional Division, filed a 42 U.S.C. § 1983
(1988) complaint against Bob Owens, Director of the Texas Board of
Pardons and Paroles ("Board") and Harry C. Green, General Counsel
for the Board. Hulsey sued Owens and Green "in their
individual/personal capacities for acts taken in their official
capacities as board members," seeking damages. The district court
adopted a magistrate judge's recommendation that Hulsey's complaint
be dismissed for failure to state a claim. See Fed. R. Civ. P.
12(b)(6). Hulsey appeals; we AFFIRM the dismissal.
I
Hulsey contends that (1) his reincarceration was based on an
assault charge that was later dropped, (2) he was not provided with
a copy of the hearing officer's findings, (3) the Board ignored his
motion to reopen his revocation proceedings, and (4) Owens and
Green "allowed state employees to revoke parole and stamp or forge
the Board members' signature . . . to make it appear that members
of the Board had actually voted a decision on a revocation."
A magistrate judge found that (1) Owens and Green are
absolutely immune from liability, and (2) inasmuch as Hulsey is not
constitutionally entitled to parole, his due process and equal
protection complaints about the pardons and parole system in Texas
do not state a claim for which relief may be granted, and (3)
Hulsey is required to exhaust his state habeas corpus remedies
before he can pursue a § 1983 claim or any federal habeas relief
challenging his reincarceration. The magistrate judge recommended
that Hulsey's complaint be dismissed.
Following a de novo review of the file, the district court
adopted the recommendation of the magistrate judge reiterating that
Hulsey's proper cause of action, provided he first exhausts his
state habeas remedies, is a writ of habeas corpus under 28 U.S.C.
§ 2254 (1988), and not a civil-rights action under § 1983. The
district court dismissed Hulsey's complaint without prejudice.
Hulsey appeals, contending that the members of the Board are not
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immune.1 Hulsey contends that the statute of limitations on his
§ 1983 action will expire if he is forced to pursue a habeas remedy
first, ignoring our decision in Heck v. Humphrey, ___ U.S. ___, 114
S. Ct. 2364, 129 L. Ed. 2d 383 (1994), in which we held that the
statute of limitations for bringing a § 1983 claim for damages
based on an inmate's conviction or imprisonment does not begin to
run until the conviction or sentence has been invalidated in
another proceeding.2
II
We address first the question of whether the Board members are
entitled to absolute immunity from Hulsey's claims. Absolute
immunity is immunity from suit rather than simply a defense against
liability, and is a threshold question "to be resolved as early in
the proceedings as possible." Boyd v. Biggers, 31 F.3d 279, 284
(5th Cir. 1994). Thus, "it is appropriate for the district courts
to resolve the question of absolute immunity before reaching the
Heck analysis when feasible." Id. (citing Siegert v. Gilley, 500
U.S. 226, 231-33, 111 S. Ct. 1789, 1793, 114 L. Ed. 2d 277 (1991)).
The Supreme Court has granted absolute immunity to judges in
1
We liberally construe the brief of a pro se appellant, Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993), and thus read Hulsey's brief to argue
that Owens and Green are not immune from suit or liability for damages.
2
Heck v. Humphrey prevents an action for damages under 42 U.S.C.
§ 1983 when the complaint, directly or indirectly, challenges the legality of the
complainant's conviction or imprisonment. Id. at 2372. A § 1983 plaintiff must
first prove that his conviction or sentence has been invalidated in a proper
proceeding prior to bringing a § 1983 action. Id. If the sentence or conviction
has not been invalidated there can be no action for damages under § 1983, and the
statute of limitations does not begin to run. Id.; see also Stephenson v. Reno,
28 F.3d 26, 27 (5th Cir. 1994) (recognizing that § 1983 action does not accrue
until conviction or sentence has been invalidated). Consequently, the statute
of limitations on Hulsey's § 1983 claim will not begin to run until after he has
obtained habeas relief, if warranted.
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the performance of their judicial duties. Nixon v. Fitzgerald, 457
U.S. 731, 745, 102 S. Ct. 2690, 2699, 73 L. Ed. 2d 349 (1982). The
Court employs a "functional" approach to determine if other
officials are entitled to absolute immunity. See, e.g., Buckley v.
Fitzsimmons, ___ U.S. ___, ___ 113 S. Ct. 2606, 2613, 125 L. Ed. 2d
209 (1993) (state prosecutor denied absolute immunity in suit that
involved job functions that were investigatory rather than
prosecutorial in nature and thus were not performed in role as
advocate for state).3 Officials whose responsibilities are
"functionally comparable" to those of a judge are also absolutely
immune from damages liability. See Butz v. Economou, 438 U.S. 478,
513-14, 98 S. Ct. 2894, 2914-15, 57 L. Ed. 2d 895 (1978) (finding
administrative law judge absolutely immune from damages liability
for performing adjudicatory functions). Thus, it is "the nature of
the function performed, not the identity of the actor who performed
it, that inform[s] our immunity analysis." Forrester v. White,
484 U.S. 219, 227-29, 108 S. Ct. 538, 544-45, 98 L. Ed. 2d 555
(1988) (denying judge absolute immunity when performing
administrative rather than judicial duties).
Although the Supreme Court has not expressly extended absolute
3
See also Cleavinger v. Saxner, 474 U.S. 193, 201, 106 S. Ct. 496,
501, 88 L. Ed. 2d 507 (1985) (summarizing absolute immunity doctrine and noting
that its extension has been based on job function challenged rather than
defendant's status); Harlow v. Fitzgerald, 457 U.S. 800, 808, 102 S. Ct. 2727,
2733, 73 L. Ed. 2d 396 (1982) (granting absolute immunity to the president based
on public policy of preventing outside pressures from directly impacting
president's execution of official duties); Imbler v. Pachtman, 424 U.S. 409, 423-
24, 96 S. Ct. 984, 991, 47 L. Ed. 2d 128 (1976) (prosecutor granted absolute
immunity for conduct integrally related to judicial system due to policy
considerations similar to those supporting absolute immunity for judges and grand
jurors).
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immunity to parole board members, the Court has noted with approval
that "federal appellate courts have so held." Cleavinger, 474 U.S.
at 200-01, 106 S. Ct. at 500; Walrath v. United States, 35 F.3d
277, 282 n.3 (7th Cir. 1994). Most circuits now hold that "parole
board members are absolutely immune from suit for their decisions
to grant, deny, or revoke parole." Walrath, 35 F.3d at 281 & n.2.
This circuit first granted absolute immunity to a parole board
member over fifteen years ago. See Cruz v. Skelton, 502 F.2d 1101
(5th Cir. 1974). Since then, we have repeatedly held that parole
board members are absolutely immune when performing their
adjudicative functions, distinguishing such decision-making
activities from administrative functions for which parole board
members are entitled to only qualified immunity. See, e.g.,
Walter v. Torres, 917 F.2d 1379, 1383 (5th Cir. 1990) (finding
parole board members absolutely immune and reiterating that
"defendant's immunity depends on function, not on identity").4 The
Seventh Circuit has long held that parole board members' conduct
that is "inexorably connected with the execution of parole
revocation procedures" is entitled to absolute immunity.5 Walrath,
4
See also Johnson v. Kegans, 870 F.2d 992, 995-96 (5th Cir.)
(discussing history of absolute immunity for parole board members, equating their
function to that of judges and labeling the parole board's function "quasi-
judicial"), cert. denied, 492 U.S. 921, 109 S. Ct. 3250, 106 L. Ed. 2d 596
(1989); Farrish v. Mississippi State Parole Bd., 836 F.2d 969, 974 (5th Cir.
1988) (focusing on the nature of the official's responsibilities and not on the
official's status or rank); Cruz v. Skelton, 502 F.2d 1101, 1102 (5th Cir. 1974)
(granting absolute immunity to parole board members when they are "engaged in the
performance of quasi-judicial duties").
5
While the Fifth Circuit has addressed the absolute immunity of parole
board members, see, e.g., Walter v. Torres, 917 F.2d 1379 (5th Cir. 1990), the
Seventh Circuit recently reviewed absolute immunity of parole board members in
much greater detail, see Walrath v. United States, 35 F.3d 277 (7th Cir. 1994).
Although Walrath concerned a federal parole board, the Supreme Court has held
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35 F.3d at 282 (quoting Trotter v. Klincar, 748 F.2d 1177, 1182
(7th Cir. 1984)). The parole revocation functions to which the
Seventh Circuit accords absolute immunity are "not only the actual
decision[s] to revoke parole, but also the activities that are part
and parcel of the decision process." See Trotter, 748 F.2d at
1182. We see no reason to hold differently.
The conduct of which Hulsey complains is conduct for which the
Board members are absolutely immune from suit.6 First, Hulsey's
claim that his parole revocation was based on an assault charge
that was later dropped is a challenge to a "decision that involved
an exercise of discretion in determining whether parole revocation
was appropriate in this particular instance." See Walrath, 35 F.3d
at 282-83 (holding parole board members to be absolutely immune
from charge that they conspired to revoke inmate's parole based on
charges they knew to be false). Second, Hulsey's claim that the
Board failed to provide him with a copy of the hearing officer's
findings in a timely manner7 is analogous to a claim against a
judge for denying an inmate the right to a speedy trial. See id.
at 283 (comparing challenge to parole board members' delay in
that "there is no basis for according to federal officials a higher degree of
immunity from liability when sued for a constitutional infringement . . . than
is accorded state officials when sued for the identical violation under § 1983."
Butz v. Economou, 438 U.S. 478, 500, 98 S. Ct. 2894, 2907, 57 L. Ed. 2d 895
(1978).
6
Green is General Counsel for the Board. In Walter, we held that the
general counsel of the Texas Board of Pardons and Paroles is entitled to the same
immunity against claims involving parole revocations as that afforded to Board
members themselves. Id. at 1381, 1383-85.
7
It appears from Hulsey's brief that although his request for a copy
of the findings was originally denied, Hulsey was provided with a copy at a later
time.
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scheduling a parole revocation hearing to a defendant's seeking
"monetary damages from a judge for violation of his speedy trial
rights"). Third, the Board's denial of Hulsey's request to reopen
revocation proceedings is adjudicatory in nature. See id. at 281-
82 (citing Trotter, 748 F.2d 1182-83, as holding that "parole board
officials who declined a request to conduct a second preliminary
parole revocation hearing were absolutely immune from suit").
Hulsey also contends that Owens and Green allowed staff
members to stamp Board members' signatures on reincarceration
decisions that no Board member ever reviewed. Hulsey concedes that
a designee may conduct a revocation hearing, and make
recommendations based upon that hearing, in the place of a Board
member,8 but he argues that the ultimate decision must still be
made by a Board member. We addressed a similar claim in Walter, in
which an inmate challenged the parole board's enactment of a
statute eliminating the necessity of conducting a formal hearing
before revoking an inmate's parole on the grounds that the inmate
had committed a felony while on parole. See Walter, 917 F.2d at
1380. We held that, in enacting the statute, the parole board was
"exercising a rule making power broader than simply making rules of
practice," see id. at 1384, but we noted that if the parole board
"had been making a rule of practice for a judicial body, it would
have been entitled to absolute immunity in making as well as
applying the rule," see id. In the present case, we hold that the
Board members' alleged practice of allowing their signatures to be
8
See Tex. Code Crim. Proc. Ann. art 42.18 § 14(a) (West 1987).
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placed on reincarceration certificates that they never reviewed is
a rule of practice; thus, even if we assume that Hulsey is
challenging the creation as well as the application of the
practice, the Board members are absolutely immune from suit.
III
Because we find that Owens and Green are absolutely immune
from suit, we will not reach the other issues discussed by the
magistrate judge and the district court. The district court's
dismissal is accordingly modified to read DISMISSED WITH PREJUDICE,
and we AFFIRM the dismissal AS MODIFIED.
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