1 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).

1 United States Court of Appeals,

Fifth Circuit.

No. 94-50348.

Summary Calendar.

Tommy Lee JACKSON, Plaintiff-Appellant,

v.

Thomas VANNOY, Chief of Police, et al., Defendants-Appellees.

April 11, 1995.

Appeal from the United States District Court for the Western

District of Texas.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

PER CURIAM.

Plaintiff-Appellant Tommy Lee Jackson ("Jackson"), a Texas

prisoner proceeding pro se and in forma pauperis, filed suit

pursuant to 42 U.S.C. § 1983 against Officers John Scharf

("Scharf") and John Palamara ("Palamara") and Chief of Police

Thomas Vannoy ("Vannoy") of the Police Department of Temple, Texas.

Jack son alleged that Scharf and Palamara violated his

constitutional rights when they stopped a car in which he was

riding, seized evidence and arrested him without pr obable cause.

Jackson also alleged that his rights were impinged because Vannoy

inadequately trained his officers. Jackson argued that the illegal

arrest caused the State's Attorney to seek a revocation of his

previous sentence of probation.

The magistrate judge held a Spears 1 hearing to allow Jackson2 See Jackson v. City of Beaumont Police Dept., 958 F.2d 616,

618 (5th Cir.1992).

2 an opportunity to expound his claims. At the hearing, Jackson

explained that he was serving a ten-year sentence for indecency

with a child. He initially received a sentence of ten years of

probation, but his probation was revoked because of the charges

arising out of the arrest that gave rise to this lawsuit.

Jackson's parole on other charges was also revoked as a result of

this incident. Jackson complained that he lost his freedom as a

result of the illegal arrest, and he noted than an ap peal of the

revocation of his probation was pending.

Jackson filed a motion for partial summary judgment, arguing

that he was e ntitled to a judgment regarding the defendants'

liability for false imprisonment. The magistrate judge addressed

the merits of Jackson's claims, recommend ed that the defendants'

motion to dismiss be granted and recommended that Jackson's motion

for partial summary judgment be denied. The district court adopted

the findings of the magistrate judge, granted the defendants'

motion to dismiss and denied Jackson's motion for partial summary

judgment.

The district court dismissed Jackson's suit pursuant to

F ED .R.C IV .P. 12(b)(6). We review d e novo the dismissal for failure

to state a claim. 2

The district court erred in determining that Jackson lacked

standing to challenge the stop of the vehic le by Palamara. In

United States v. Roberson, 6 F.3d 1088, 1091 n. 6 (5th Cir.1993),3 --- U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

4 See Adams v. Hansen, 906 F.2d 192, 194 (5th Cir.1990)

( Spears hearing is not a trial on the merits but is in the nature

of an amended complaint or more definite statement).

5 Neitzke v. Williams, 490 U.S. 319, 327-28, 109 S.Ct. 1827,

1832-33, 104 L.Ed.2d 338 (1989); Sullivan v. Internal Affairs

Dep't, No. 93-8771, 25 F.3d 1043 (5th Cir. June 2, 1994)

(unpublished).

3 cert. denied,

--- U.S. ----, 114 S.Ct. 1383, 128 L.Ed.2d 58 (1994),

this Court held that a passenger has standing to challenge the

constitutionality of a vehicle stop because a stop results in a

seizure of the pas senger. Nevertheless, we find the district

court's error is harmless because Jackson's testimony at the Spears

hearing reveals that his claim is not ripe under Heck v. Humphrey. 3

A complaint, as amended by a S pears hearing, 4 may be

dismissed pursuant to a Rule 12(b)(6) motion by the defendant or by

28 U.S.C. § 1915(d) if it lacks an arguable bas is in law. 5 The

d ispositive issue is whether Jackson's § 1983 complaint is ri pe.

In Heck, the Supreme Court directed that:

[i]n order to recover damages for allegedly unconstitutional

convicti on or imprisonment, or for other harm caused by

act ions whose unlawfulness would render a conviction or

sentence invalid, a § 1983 plaintiff must prove that the

conviction or sentence has been reversed on direct ap peal,

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.

--- U.S. at

--- -, 114 S.Ct. at 2372 (footnote omitted). H eck

requires the district court to consider "whether a judgment in

favor of the plaintiff would necessar ily imply the invalidity of6 See Thomas v. State, 572 S.W.2d 507, 509

(Tex.Crim.App.1976) (probation); Garrett v. State, 791 S.W.2d

137, 140 (Tex.Crim.App.1990) (parole).

4 his conviction or sentence; if it would, the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction

or sentence ha s already been invalidated." I d. In addition to

convictions and sentences, Heck applies to proceedings which call

into question the fact or duration of parole. S ee Cotton v. Texas

Dep't Criminal Justice, No. 94-10532, 35 F.3d 560 (5th Cir. Aug.

26, 1994) (parole proceeding) (unpublished). C otton indicates that

Heck should also apply to proceedings that call into question the

fact or duration of probation.

A judgment in favor of Jackson on his illegal seizure claim

would necessarily imply the invalidity of the revocation of his

probation and parole. 6 It logically follows that H eck applies to

Jackson's probation and parole revocation proceedings. Jackson has

not demonstrated that his current sentence ha s already been

invalidated. He does not allege that any revocation proceeding has

been reversed, expunged, set aside by a state court, or called into

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

Thus, Jackson's action is not cognizable under § 1983 at this time,

and we need not address the arguments Jackson has raised on appeal.

The appeal is DISMISSED WITHOUT PREJUDICE.