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 i nmate 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. S e e Fed. R. Civ. P.

12(b)(6). Hulsey appeals; we AFFIRM the dismissal.-2- 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 enti tled 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 federa l 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 prop er 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 not1 We libe rally construe the brief of a pro se appellant, Y ohey 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. I d. at 2372. A § 1983 plaintiff must

firs t prove that his conviction or sentence has been invalidated in a proper

proceeding prior to bringing a § 1983 action. I d. 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. I d. ; 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.

-3- 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 sente nce 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 proceedin gs as possible." B oyd v. Biggers

, 31 F.3d 279, 284

(5th Cir. 1994). Thus, "it is appropriate for the district courts

to resolve the questi on 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 in3 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 f unction 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 prev enting outside pressures from directly impacting

president's execution of official duties); Imbler v. Pachtman

, 424 U.S. 409, 423-

24, 96 S. Ct. 984, 9 91, 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).

-4- the performance of their judicial duties. N ixon v. Fitzgerald

, 457

U.S. 731, 745, 102 S. Ct. 2690, 2699, 73 L. Ed. 2d 349 (1982). The

Court e mploys a "functional" approach to determine if other

officials are entitled to absolute immunity. S ee, 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 stat e). 3 Officials whose responsibilities are

"functionally comparable" to those of a judge are also absolutely

immune from damages liability. S ee 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." F orrester v. White

,

4 84 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 absolute4 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 parol e board's function "quasijudicial"), cert. denied

, 492 U.S. 921, 109 S. Ct. 3 250, 106 L. Ed. 2d 596

(1989); Farrish v. Mis sissippi 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, s ee Walrath v. United States

, 35 F.3d 277 (7th Cir. 1994).

Although Walrath concerned a federal parole board, the Supreme Court has held

-5- immunity to parole board members, the Court has noted with approval

that "federal appellate courts have so held." C leavinger

, 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." W alrath

, 35 F.3d at 281 & n.2.

This circuit first granted absolute immunity to a parole board

member over fifteen years ago. S ee 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 f unctions for which parole board

members are entitled to only qual ified immunity. S ee

, e.g.

,

Walter v. Torres

, 917 F.2d 1379, 1383 (5th Cir. 1990) (finding

parole board members absolu tely 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 "inex orably connected with the execution of parole

revocation procedures" is entitled to absolute immunity. 5 W alrath

,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 W alter

, 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.

-6- 35 F.3d at 282 (quoting T rotter 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." S ee T rotter

, 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." S ee 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 provi de him with a copy of the hearing officer's

f indings in a timely manner 7 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' d elay in8 See Tex. Code Crim. Proc. Ann. art 42.18 § 14(a) (West 1987).

-7- sch eduling 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. S ee 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 c ontends 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 W alter

, in

which an inmate challenged the parole board's enactme nt of a

statute eliminating t he 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. S ee 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-

placed on reincarceration certificates that they never reviewed is

a rule of practice; thus, even if we assume that Hulsey is

challenging the creat ion 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

.