1 United States Court of Appeals,

Fifth Circuit.

No. 94-10674

Summary Calendar.

William Steve McGREW, Plaintiff-Appellant,

v.

TEXAS BOARD OF PARDONS & PAROLES, et al., Defendants-Appellees.

March 13, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:

Texas inmate William Steve McGrew (McGrew) filed this civil

rights suit alleging that he was being incarcerated beyond his

original sentence of ten years in violation of his constitutional

rights. We affirm the district court's dismissal of the 42 U.S.C.

§ 1983 complaint for fa ilure to state a claim and modify the

dismissal of any habeas corpus claim to be without prejudice.

I. FACTS AND PROCEDURAL HISTORY

McGrew, a Texas Department of Criminal Justice (TDCJ)

prisoner, filed a 42 U.S.C. § 1983 complaint against the Texas

Board of Pardons and Parole (Board), its Director, and the Texas

Governor, in her capacity as the executive director of the Board,

alleging that he completed his prison sentence in 1993 but he

remains illegally imprisoned as a result of the application of an

uncon stitutional state statute. McGrew is contesting the

constitutionality of Texas Code Crim.Proc.Ann. art. 42.18, § 14(a)2

(West Supp.1994), which provides that, upon revocation of a

person's mandatory supervision, the person "may be required to

serve the portion remaining of the sentence on which he was

released, such portion remaining to b e calculated without credit

for the time from the dat e of his release to the date of

revocation." McGrew alleged that Governor Richards and Director

Kyle have been made aware of this illegal policy and have not taken

any steps to terminate it. McGrew requested that the district

court order the Board to discharge him from custody and award him

monetary damages.

McGrew filed a motion for a temporary restraining order (TRO)

and/or for a prelimina ry injunction seeking to restrain the

defendants from enforcing an allegedly unconstitutional statute.

McGrew also filed a motion to file an amended complaint seeking to

have his complaint certified as a class action on behalf of other

inmates whose sentences had been extended by the Board.

The defendants filed a motion to dismiss and for summary

judgment. The defendants presented documentary evidence reflecting

the following facts. McGrew was released on mandatory supervision

on October 18, 1990, and was arrested for aggravated robbery on

January 31, 1993. The Board of Pardons and Paroles issued a "blue"

warrant on February 9, 1993, directing the re taking of plaintiff

for violation s of his mandatory supervision. The aggravated

robbery charge was dismissed at the request of the district

attorney because the complainant signed an affidavit of

non-prosecution. The Board decided to proceed with the revocation1 McGrew's mandatory supervision was revoked based on his 1)

failure to report to his parole officer; 2) alleged commission

of an aggravated robbery; 3) association with a person of

criminal background; 4) failure to abide by the condition that

he participate in a substance abuse program and present

verification of attendance. McGrew argued that his mandatory

release was erroneously revoked because 1) he was under an

illegal arrest at the time that he failed to report to his parole

officer; 2) the aggravated robbery charge was dismissed; 3) he

was not aware that his companion had been previously convicted;

and 4) he had attended 246 hours of a substance abuse program,

which could be confirmed by the state hospital.

3 hearing, which was attended by McGrew and his counsel. McGrew was

found guilty of four violatio ns of his mandatory supervision and

the Board revoked McGrew's mandatory supervision on June 14, 1993.

The defendants argued in their motion that McGrew is properly

serving the remainder of his term under T exas law and that the

Board and the individual defendants are immune from suit. McGrew

filed an oppo sition to the motion in which he argued that his

mandatory supervision was erroneously and arbitrarily revoked. 1

The district court denied McGrew's motion for a TRO and

p reliminary injunction and his request to amend his complaint to

proceed as a class action. The district court also determined,

based on the documents submitted by the defendants, that McGrew was

not being illegally imprisoned under Texa s law and that McGrew's

complaint failed to state a claim upon which relief can be granted.

The district court granted the defendants' motion to dismiss and

entered judgment in their favor.

II. ANALYSIS

A. WHETHER THE DISTRICT COURT PROPERLY DISMISSED THE § 1983 SUIT

FOR FAILURE TO STATE A CLAIM.

McGrew argues that he has completed his origin al ten-year2 Although the district court stated that it was granting the

defendants' motion for failure to state a claim upon which relief

can be granted, it actually addressed the defendants' summary

judgment motion because it considered materials outside of the

pleadings filed by McGrew. See Fed.R.Civ.P. 12(b). However, as

discussed below, the proper determination would have been to

dismiss the complaint for failure to state a claim rather than to

rely upon materials outside of McGrew's complaint.

4 sentence and that it is irrelevant that he served part of the time

outside of the institution. McGrew contends that his sentence

could not be extended in the absence of an additional conviction

and sentence. McGrew argues that he did not violate the terms of

his mandatory supervision and, thus, that his sentence continued to

run while he was paroled. McGrew argues that his extended sentence

is not an isolated incident but i s the result of the board's

widespread policy imposed on all parolees.

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. G iddings v. Chandler, 979 F.2d 1104, 1106 (5th Cir.1992).

The dismissal "may be upheld only if it appears that no rel ief

could be granted under any set of facts that could be proven

consistent wi th the allegations." I d. (internal quotation marks

and citation omitted). 2

Insofar as McGrew is seeking monetary damages for having been

illegally imprisoned under § 1983, the dismissal of his complaint

should be affirmed although on grounds different than those stated

by the district court. S ee Bickford v. International Speedway

Corp., 654 F.2d 1028, 1031 (5th Cir.1981) (revers al is

inappropriate if ruling of district court can be affirmed on any3 Jackson v. Torres, 720 F.2d 877 (5th Cir.1983).

5 grounds, regardless of whether those grounds were used by district

court).

In Heck v. Humphrey, --- U.S. ----, ----, 114 S.Ct. 2364,

2372, 129 L.Ed.2d 383 (1994), the Supreme Court held that:

in order to recover damages for allegedly uncon stitutional

conviction or imprisonm ent, or for other harm caused by

actions whose unla wfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must pro ve that the

conviction or sentence has been reversed on direc t appeal,

expunged by executive order, declared invalid by a state

tribunal authorized to make such determination, or called into

question by a federal court's issuance of a writ of habeas

corpus, 28 U.S.C. § 2254. A claim for damages bearing that

relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

(footnote omitted; emphasis in original). Because an action

attac king the validity of parole proceedings calls into question

the fa ct and duration of confinement, 3 it must satisfy the Heck

element. S ee Heck,

--- U.S. at ----, 114 S.Ct. at 2370; C otton v.

Texas Dep't of Cr iminal Justice, No. 94-10532 at 2, 35 F.3d 560

(5th Cir. Aug. 26, 1994). McGrew is challenging the Board's policy

of "extending" his sentence and is also alleging that his mandatory

supervision was improperly revoked based on erroneous factual

findings. McGrew alleged that he has not commenced any other

lawsuits in state or federal court dealing with the facts involved

in this proceeding or otherwise related to his impris onment.

McGrew remains in custody and he has not alleged that the sentence

imposed as a result of the revocation proceedings has been

inval idated by a state or federal court. Therefore, McGrew's

complaint does not state a § 1983 cause of action.4 McGrew's argument that the district court erred in denying

his requests for injunctive relief is moot in light of his

failure to state a cognizable § 1983 claim and the lack of

exhaustion of his habeas claims. See Rocky v. King, 900 F.2d

864, 867 (5th Cir.1990) ("[a]n action is moot where (1) the

controversy is no longer live or (2) the parties lack a personal

stake in its outcome").

6 Even if a complaint is subject to dismissal under Heck, "it

remains appropriate for distr ict courts to consider the possible

applicability of the doctrine of absolut e immunity." B oyd v.

Biggers, 31 F.3d 2 79, 284 (5th Cir.1994). The Texas Board of

Pardon and Paroles, a division of the Texas Department of Criminal

Justice, is cloaked with Eleventh Amendment immunity. S ee Voisin's

Oyster House v. Guidry, 799 F.2d 183 , 186 (5th Cir.1986).

Therefore, McGrew's § 1983 claim for damages against the Board is

barred by the Eleventh Amendment.

Although parole board members who personally participate in

the "quasi-judicial activity of revoking parole" are absol utely

immune from suit, other executive officers who are responsible for

promulgating the rules and policies governing such proceedings are

entitled only to qualified immunity. S ee Walter v. Torres, 917

F.2d 1379, 1383 (5th Cir.1990). Because McGrew did not allege that

Richards and Kyle personally participated in his revocation

proceedings, they are not entitled to absolute immunity under

Walter. The qualified immunity issue need not be addressed,

however, because McGrew has not alleged a § 1983 claim against

these defendants in light of Heck. 4

B. WHETHER ANY HABEAS CORPUS CLAIM SHOULD HAVE BEEN DISMISSED WITH

PREJUDICE.5 See e.g., Wilson v. Foti, 832 F.2d 891 (5th Cir.1987)

(allegation of failure to credit "good time" constitutes § 2254

claim); Beebe v. Phelps, 650 F.2d 774 (5th Cir.1981) (§ 2254

proceeding involving claim of unconstitutional forfeiture of good

time in context of parole revocation); Keenan v. Bennett, 613

F.2d 127 (5th Cir.1980) (loss of "good time" credit treated as

claim under § 2254); Lerma v. Estelle, 585 F.2d 1297 (5th

Cir.1978), cert. denied, 444 U.S. 848, 100 S.Ct. 95, 62 L.Ed.2d

62 (1979) (same).

7 McGrew's complaint should also be construed as seeking habeas

relief. S ee Jackson, 720 F.2d at 879; C otton, No. 94-10532 at 3-

4. 5 McGrew's allegations reflect that he has not exhausted his

state remedies and, therefore, insofar as his complaint can be

construed as seeking habeas relief, it must be dismissed for

failure to exhaust. Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198,

71 L.Ed.2d 379 (1982); 28 U.S.C. § 2254(b). The district court's

dismissal of any habeas claim therefore is modified to be a

dismissal without prejudice to McGrew's right to seek federal

habeas relief after his state remedies have been exhausted.

C. WHETHER THE DISTRICT COURT ERRED IN DENYING HIS MOTION TO AMEND

HIS COMPLAINT.

McGrew argues that the district court erred in denying his

motion to amend his complaint because there are a number of other

inmates similarly situated as reflected by the overcrowded

condition of the Texas prisons. An action may be maintained as a

class action if it meets the criteria of "numerosity, commonality,

typicality, and adequacy of representation," the questions of law

or fact involved "predominate" over any issues affecting individual

members of the class, and a class action is the "superior" method

of handling the action. Fed.R.Civ.P. 23(a), (b)(3); see Jenkins6 In a reply brief, McGrew argues for the first time that the

Board violated Texas law by failing to revoke his parole within

thirty days of his revocation hearing. McGrew argues that the

hearing was held on May 13, 1993, and the Board did not issue a

decision until June 14, 1993. This Court will not review issues

which are initially raised in a reply brief. United States v.

Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S.

932, 110 S.Ct. 321, 107 L.Ed.2d 312 (1989).

8 v. Raymark Industries, Inc., 782 F.2d 468, 471 & n. 4 (5th

Cir.1986). "The district court has wide discretion in deciding

whether or not to certify a proposed class. Assuming the court

considers the Rule 23 criteria, we may reverse its decision only

for abuse of discretion." Jenkins, 782 F.2d at 471-72.

McGrew alleged that there are numerous other inmates having an

interest in his action but he did not address any of th e other

requirements of Rule 23. Further, because McGrew is proceeding pro

se and his own complaint failed to state a cause of action, his

ability to serve as an adequate representative of the class is

dubious. See Gonzales v. Cassidy, 474 F.2d 67, 72 (5th Cir.1973)

(under Rule 23(a), the represent ative parties in a class action

must "fairly and adequately protect the interests of the class").

The district court did not abuse its discretion in denying the

motion to amend the complaint. 6

CONCLUSION

For the reasons set forth above, the district court's judgment

dismissing th e § 1983 suit for failure to state a claim is

AFFIRMED. The dismissal of the habeas corpus claim is MODIFIED to

be a dismissal without prejudice. AFFIRMED AS MODIFIED.