IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

GARY A. HANEY, §

(TDCJ No. 832434) § 

 §

 § CIVIL ACTION NO.4:05-CV-271-Y VS. 

§

MRS. O’NEAL, §

PAROLE Officer, et al. § 

 OPINION and ORDER OF DISMISSAL UNDER 28 U.S.C. §§ 1915A(b)(1),

 and UNDER 28 U.S.C. §§ 1915(e)(2)(B)(i) and (ii) 

Plaintiff Gary A. Haney, a prisoner presently housed at the

Texas Department of Criminal Justice (TDCJ)–-McConnell Unit, was

permitted by the magistrate judge to proceed herein pursuant to 28

U.S.C. § 1915, with the filing fee to be collected as required by

the Prison Litigation Reform Act (PLRA). Haney’s complaint under

42 U.S.C. § 1983 names as defendants a parole officer named Mrs.

O’Neal, identified by Plaintiff as with the Texas Board of Pardons

and Paroles; and George Gallagher, Judge, 396th Judicial District

Court, Tarrant County, Texas. (Compl. Style; ¶ IV(B).) In response

to court order, Haney also supplied a more definite statement (MDS)

of his claims. The Court has reviewed both the complaint and the

MDS to discern Haney’s factual allegations and claims. 

Haney alleges that in October 2004, he was convicted in the

396th Judicial District Court of Tarrant County, Texas, in cause

number 095388W, and sentenced to two years’ confinement. (Compl. §

V; MDS at ¶¶ 2.) Haney complains that Judge Gallagher was aware he

was on parole and still ran his sentence concurrently with any

 

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1Neitzke v. Williams, 490 U.S. 319,328 (1989). Section 28 U.S.C. § 1915(e)

requires dismissal not only when an allegation of poverty is untrue or the action

is frivolous or malicious, but also when “the action . . . fails to state a

claim on which relief may be granted; or seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.A. § 1915(e)(2)(A) and

(B)(West Supp. 2005). 

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sentence imposed for a parole violation. (Compl. § V; MDS at ¶¶ 2-

4.) Haney alleges that prior to the new conviction, he was on

parole after conviction for burglary of a habitation, cause number

32338 out of Johnson County, Texas. (MDS at ¶ 5.) Haney alleges

that he never was served with a parole violator (“blue”) warrant

until after this suit was filed, and he alleges that parole officer

O’Neal never provided him either an initial hearing or a revocation

hearing before the revocation of parole. (Compl. § V; MDS at ¶ 6.)

Haney contends that although O’Neal had the time to “take me to a

pre-hearing but [she] never even came to the [county jail] to talk

to me at any time, even after my family called and went to her

office.” (MDS at 7.) He alleges that when he was received back

into TDCJ he was initially given a new identification number, but

was subsequently assigned his old number, with TDCJ acknowledging

that he was there on a parole violation. (Compl. § V.) Haney seeks

to be reinstated to parole and seeks a declaration of why he is

housed under the old TDCJ number when, until recently, he never had

a blue warrant issued. (Compl. § VI; MDS ¶ 9.) 

 A complaint filed in forma pauperis that lacks an arguable

basis in law should be dismissed under 28 U.S.C. § 1915.1

 Under 28

U.S.C. § 1915(e)(2)(B), a district court retains broad discretion

 

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2See 28 U.S.C.A. § 1915(e)(2)(West Supp. 2005); Adepegba v. Hammons, 103

F.3d 383, 388 (5th Cir. 1996); see also Wesson v. Oglesby, 910 F.2d 278, 281 (5th

Cir. 1990)(discussing authority to dismiss at any time under prior § 1915(d)).

3See 28 U.S.C.A. § 1915A(a)(West Supp. 2005).

4See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).

5Id., citing Neitzke v. Williams, 490 U.S. 319, 327 (1989).

6512 U.S. 477, 486-87 (1994).

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in determining at any time whether an in-forma-pauperis claim

should be dismissed.2

 Furthermore, as a part of the PLRA, Congress

enacted 28 U.S.C. § 1915A, which requires the Court to review a

complaint from a prisoner seeking relief from a governmental entity

or governmental officer or employee as soon as possible after

docketing.3 Consistent with § 1915A is prior case law recognizing

that a district court is not required to await a responsive

pleading to conduct its § 1915 inquiry.4 Rather, § 1915 gives

judges the power to “dismiss a claim based on an indisputably

meritless legal theory.”5

 After review and consideration of Haney’s

claims in this suit, the Court finds that they must be dismissed

under the authority of 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2)(B)(i)

and (ii).

The Court concludes that Haney’s claims are not cognizable

under 42 U.S.C. § 1983. Plaintiff is seeking injunctive-type relief

from this Court related to parole-revocation proceedings, and

related to the sentence imposed upon him by the 396th Judicial

District Court. In Heck v. Humphrey,6 the Supreme Court held that a

 

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7Heck, 512 U.S. at 486-87; see also Wells v. Bonner, 45 F.3d 90, 94 (5th

Cir. 1995).

8See Clarke v. Stadler, 154 F.3d 186, 190-91 (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), cert. den’d, 525 U.S. 1151 (1999).

9Wilkinson v. Dotson, 125 S.Ct. 1242, 1247 (2005).

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claim that, in effect, attacks the constitutionality of a conviction

or imprisonment is not cognizable under 42 U.S.C. § 1983 and does

not accrue, until that conviction or sentence has been “reversed on

direct 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.”7

Although the Heck opinion involved a bar to claims for monetary

damages, a dismissal of a claim for injunctive relief may also be

made pursuant to Heck.8

Plaintiff’s challenges to the imposition of sentence by the

state district court, if successful, necessarily would imply the

invalidity of his present incarceration, and are thus not cognizable

under § 1983 unless Plaintiff has satisfied the conditions set by

Heck. With regard to challenges brought under § 1983 to parole

proceedings, the Supreme Court recently clarified that although

challenges only to the procedures used to determine parole eligibility may go forward in a civil suit, if the claims “seek to invalidate the duration of [an inmate’s] confinement–-either directly

through an injunction compelling speedier release or indirectly

through a judicial determination that necessarily implies the

unlawfulness of the State’s custody,”9

 the prisoner must pursue such

claim through habeas corpus or similar remedies. In this instance,

 

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10See McGrew v. Texas Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.

1995).

11See Heck, 512 U.S. at 487-88; McGrew, 47 F.3d at 161.

12See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996).

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Haney makes clear that he seeks to be reinstated to parole, and thus

the Heck rule bars his claims for injunctive relief. Plaintiff

remains in custody and has not shown that the complained-of

imprisonment has been invalidated by a state or federal court.10 As

a result, Plaintiff's claims are not cognizable under § 1983, and

must be dismissed pursuant to 28 U.S.C. § 1915A(b)(1) and 28 U.S.C.

§ 1915(e)(2)(B)(i) and (ii).11

All of Plaintiff’s claims under 42 U.S.C. § 1983 are hereby

DISMISSED WITH PREJUDICE to their being asserted again until the

Heck v. Humphrey conditions are met, under the authority of 28

U.S.C. § 1915A(b)(1) and 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).12

 SIGNED August 22, 2005.

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE 

 

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