* Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 12, 2006

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-21051

Conference Calendar

SIMON TERRY JEFFERY, 

Plaintiff-Appellant,

versus 

RISSIE OWENS, Chairman, Texas Board of Pardons and Paroles; 

ELVIS HIGHTOWER, Board Member, Texas Board of Pardons and 

Paroles; GERALD GARRETT, Parole Commissioner, Texas Board of

Pardons and Paroles; JAMES PAUL KIEL, Parole Commissioner, 

Texas Board of Pardons and Paroles, 

Defendants-Appellees. 

--------------------

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-3527

--------------------

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

Simon Terry Jeffery, Texas prisoner # 283045, filed an in

forma pauperis (IFP) 42 U.S.C. § 1983 complaint against various

members of the Texas Board of Pardons and Parole seeking monetary

damages and injunctive relief because he was denied parole based

on arrests that had been expunged from his record. The district

court dismissed the complaint for failure to state a claim upon

which relief may be granted because Jeffery’s claims were barred
No. 05-21051

-2-

by Heck v. Humphrey, 512 U.S. 477 (1994). This court reviews

such a dismissal de novo. Bazrowx v. Scott, 136 F.3d 1053, 1054

(5th Cir. 1998). 

A state prisoner may not maintain a § 1983 action if a

judgment in favor of the prisoner would necessarily imply the

invalidity of his conviction or sentence, unless the prisoner can

demonstrate that the conviction or sentence already had been

invalidated. Heck, 512 U.S. at 487; Edwards v. Balisok, 520 U.S.

641, 648 (1997). The rule in Heck applies to proceedings that

call into question the fact or duration of parole. Littles v.

Bd. of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir. 1995)

(applying Heck to parole revocation). 

Jeffery’s argument that his claim if successful would not

necessarily imply the invalidity of his parole proceedings is

based on Wilkinson v. Dotson, 544 U.S. 74, 78-83 (2005). In

Wilkinson, the Supreme Court held that the claims of two state

prisoners challenging the validity of state procedures for

determining parole eligibility were properly brought under § 1983

because “neither prisoner’s claim would necessarily spell

speedier release, neither lies at ‘the core of habeas corpus.’” 

Wilkinson, 544 U.S. at 82.

Unlike the prisoners in Wilkinson, Jeffery is not making a

general challenge to parole procedures, he alleged a specific

error in his case - that the Board wrongly considered arrests

which had been expunged to deny him parole. Jeffery sought a
No. 05-21051

-3-

declaratory judgment stating that the consideration of those

arrests was error and that the error was the sole reason for the

denial of parole. Additionally, Jeffery sought compensatory and

punitive damages for the alleged actions that caused him to be

denied parole. Granting this relief necessarily implies that

Jeffery was denied parole in error. The district court did not

err in determining that Jeffery may not obtain relief under

§ 1983 until the decision to deny him parole is reversed or

otherwise called into question. See Heck, 512 U.S. at 486-87;

Littles, 68 F.3d at 123. 

Jeffery’s appeal is without arguable merit and is frivolous. 

See Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). 

Because the appeal is frivolous, it is dismissed. See 5TH CIR.

R. 42.2. 

The district court’s dismissal of Jeffery’s § 1983 complaint

for failure to state a claim and this court’s dismissal of this

appeal as frivolous both count as strikes for purposes of 28

U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 385-87

(5th Cir. 1996). Jeffery has a prior strike. Jeffery v.

Canales, No. H-04-3798 (S.D. Tex. Oct. 8, 2004) (unpublished). 

Because Jeffery has accumulated at least three strikes under

§ 1915(g), he is barred from proceeding IFP in any civil action

or appeal filed while he is incarcerated or detained in any

facility unless he is under imminent danger of serious physical

injury. See § 1915(g). 
No. 05-21051

-4-

APPEAL DISMISSED; 28 U.S.C. § 1915(g) BAR IMPOSED.