1Pursuant 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opinion should not be published and is not precedent except under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

September 5, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-11317

Summary Calendar

 

DAVID EARL HUNTER,

Plaintiff-Appellant,

versus

VICTOR RODRIGUEZ, Director, 

Executive Director Board of 

Pardon and Parole; JACK KILLE, 

Hearing Officer; PHILICA MITCHELL, 

Hearing Officer,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:02-CV-1903-H

 

Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

PER CURIAM:1

David Earl Hunter, Texas state prisoner #662417, proceeding

pro se and in forma pauperis, appeals the sua sponte dismissal of

his 42 U.S.C. § 1983 complaint brought against Victor Rodriguez, in

his official capacity as Executive Director of the Texas Board of
2

Pardons and Paroles, and against Parole Hearing Officer Jack Kille

and Supervising Parole Officer Philicia Mitchell. The district

court, holding that Rodriguez was entitled to absolute immunity,

dismissed Hunter’s monetary claims against Rodriguez with

prejudice, and dismissed Hunter’s monetary claims against Kille and

Mitchell without prejudice pursuant to Heck v. Humphrey, 512 U.S.

477, 487 (1994). The district court dismissed Hunter’s claims for

injunctive relief against all three defendants without prejudice to

those claims being reasserted in a petition for habeas corpus.

None of the defendants were served and none appeared. Hunter

argues that the district court erroneously determined that the

defendants were entitled to immunity because he had a

constitutional right to counsel at his parole revocation hearing.

A district court’s dismissal, under 28 U.S.C. § 1915(e)(2), of

a prisoner’s suit prior to service is reviewed for an abuse of

discretion. Boyd v. Biggers, 31 F.3d 279, 282 (5th Cir. 1994).

Whether a defendant possesses absolute immunity from suit, however,

is a question of law that is reviewed de novo. Walter v. Torres,

917 F.2d 1379, 1383 (5th Cir. 1990). Immunity is “a threshold

question, to be resolved as early in the proceedings as possible.”

Boyd, 31 F.3d at 284. It is therefore “appropriate for the

district court[] to resolve the question of absolute immunity

before reaching the Heck analysis when feasible.” Id.

Defendants Mitchell and Kille are entitled to absolute
3

immunity because they were participants in the decision to revoke

Hunter’s parole. Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir.

1995); Littles v. Board of Pardons and Paroles Div., 68 F.3d 122,

123 (5th Cir. 1995). To the extent that Rodriguez participated in

the revocation decision, the district court also correctly

concluded that Rodriguez is also entitled to absolute immunity.

Id. Furthermore, even if Rodriguez did not participate in the

decision to revoke Hunter’s parole, Hunter’s claim against him is

barred under Heck v. Humphrey. See McGrew v. Texas Bd. of Pardons

& Paroles, 47 F.3d 158, 160-61 (5th Cir. 1995). A dismissal of a

claim for damages based on absolute immunity or pursuant to Heck is

a dismissal with prejudice. See Boyd, 31 F.3d at 283-84, 285. A

dismissal of a claim for injunctive relief may also be made

pursuant to Heck and may be made without prejudice. See Clarke v.

Stalder, 154 F.3d 186, 190–191 (5th Cir. 1998) (en banc)(holding

that a claim for prospective injunctive relief that would imply the

invalidity of a prisoner's conviction may be dismissed without

prejudice subject to the rule of Heck v. Humphrey). Heck v.

Humphrey clearly extends to Hunter's request for injunctive relief

based on his assertion that he was denied representation at his

revocation hearing, and the district court, therefore, correctly

dismissed Hunter's claim for injunctive relief without prejudice

and correctly dismissed with prejudice Hunter's claim for damages

against Rodriguez.
4

Hunter's remaining claim, his claim for damages against

Mitchell and Kille, was also properly dismissed. However, a

dismissal based on absolute immunity should generally be with

prejudice. Boyd, 31 F.3d at 285. Indeed, “in in forma pauperis

proceedings . . . dismissals as frivolous or malicious should be

deemed to be dismissals with prejudice unless the district court

specifically dismisses without prejudice.” Marts v. Hines, 117

F.3d 1504, 1506 (5th Cir. 1997) (en banc). Of course, a district

court that chooses to dismiss a prisoner's in forma pauperis claim

as frivolous may also choose to make that dismissal without

prejudice. Id. However, “[w]hen the trial court dismisses without

prejudice it is expected that the court will assign reasons,” and

“[u]nexplained dismissals without prejudice will necessitate

remand.” Id. Neither the magistrate judge nor the district court

provided reasons for the decision to dismiss without (rather than

with) prejudice Hunter's claims for damages against Mitchell and

Kille. Accordingly, we VACATE that portion of the order

dismissing without prejudice Rodriguez's claim for damages against

Mitchell and Kille, and REMAND for entry of an order of dismissal

with prejudice. We AFFIRM that portion of the district court's

order dismissing without prejudice Hunter's claim for injunctive

relief and dismissing with prejudice Hunter's claim for damages

against Rodriguez. 

AFFIRMED in part, VACATED in part, and REMANDED.