1

Plaintiff was released on parole from TDCJ-CID to WBH on or about September 11, 2003 after being

incarcerated following a conviction for delivery of a controlled substance, for which he received a fifteen-year sentence

on June 11, 1993. He left WBH without permission on or about January 9, 2004. 

Memorandum Opinion and Order – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

EDWIN LEE MILLER, #646559, §

§

Plaintiff, §

§

v. § Civil Action No. 3:05-CV-1838-L

§

THE WAY BACK HOUSE, et al., §

§

Defendants.

MEMORANDUM OPINION AND ORDER

This is a pro se civil rights case brought by Plaintiff Edwin Lee Miller (“Plaintiff” or

“Miller”), an inmate in the Connally Unit of the Texas Department of Criminal Justice –

Correctional Institutions Division (“TDCJ-CID”) in Kenedy, Texas. Plaintiff is currently

incarcerated following arrest by the Fort Worth Police Department on a parole warrant, after he

violated the terms of his mandatory supervision/parole at Way Back House (“WBH”), a halfway

house in Dallas, Texas, by leaving without permission.1 Defendants are WBH, and WBH personnel

Al Richard, Angie White and Percy Wilson. Plaintiff alleges that while at WBH, Defendants were

deliberately indifferent to his mental condition and his need for a referral to the Texas Department

of Mental Health and Mental Retardation (“MHMR”). Plaintiff contends that because of his mental

condition and Defendants’ refusal to refer him to MHMR, he left the WBH without permission,was

arrested on a parole warrant, and his parole was revoked. Plaintiff also contends that Defendants’

refusal to refer him to MHMR violated the Americans with Disabilities Act (“ADA”). 

 

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The court hereby directs the clerk of court to file Plaintiff’s Amended Objection to the Magistrate’s Finding

and Recommendation to Dismiss, Under Fed. R. Civ. P. Rule 16 and Fed. R. Civ. P. Rule 15(b), received by the court

on March 23, 2006. 

Memorandum Opinion and Order – Page 2

Pursuant to 28 U.S.C. § 636(b), this action was referred to the United States Magistrate Judge

for proposed findings and recommendation. On February 1, 2006, the Findings, Conclusions and

Recommendation of the United States Magistrate Judge (“Report”) were filed. Miller filed

Plaintiff’s Written Objection to the Magistrate’s Findings and Recommendations to Dismiss Under

“Heck” for Failure to Exhaust Administrative Remedies on March 17, 2006. Plaintiff also filed a

Motion for Leave to File an Amended [Objection] to the Magistrate’s Recommendation as Under

Fed. R. Civ. P. Rule 16 and Fed. R. Civ. P. Rule 15(b) on March 23, 2006. The court will refer to

the March 17, 2006 objections and the March 23 motion for leave to file objections as “Plaintiff’s

Objections.”2

I. Discussion

A. The Magistrate Judge’s Report

The magistrate judge determined that Plaintiff’s § 1983 and ADA claims implicate the

validity of his revocation proceeding for which he is presently incarcerated. The magistrate judge

further determined that Plaintiff is precluded from maintaining this action under § 1983, as no court

has ever determined that the revocation of Plaintiff’s parole was invalid. See Heck v. Humphrey,

512 U.S. 477, 487 (1994); Littles v. Board of Pardons and Paroles Div., 68 F.3d 122, 123 (5th Cir.

1995). The magistrate judge recommended that Plaintiff’s complaint be dismissed without prejudice

to Plaintiff refiling the case if Plaintiff’s parole revocation is expunged, reversed or otherwise set

aside. The magistrate judge also determined that, alternatively, Plaintiff’s complaint should be

dismissed for his failure to exhaust his administrative remedies under 42 U.S.C. § 1997e(a), as

 

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Memorandum Opinion and Order – Page 3

amended in 1996 by the Prisoner Litigation Reform Act (“PLRA”). Finally, the magistrate judge

recommended that the court deny as moot Plaintiff’s Motion to Appoint Counsel and for Production

of Documents (Docket # 4, 6, 7, 8, 9 and 14). 

B. Plaintiff’s Objections

In his Objections, Plaintiff appears to be contending that Heck’s requirements should not

apply in this instance because at the time WBH allegedly deprived him of medical care and

discriminated against him in violation of the ADA, he was a “releasee” and not a prisoner. He also

appears to be contending that since a ruling in his favor in this § 1983/ADA case would not have

any impact on his original 1993 sentence, Heck is inapplicable. With regard to the magistrate

judge’s finding and recommendation that Plaintiff’s complaint should be dismissed for his failure

to exhaust his administrative remedies, Plaintiff seems to be arguing that he is not subject to the

exhaustion requirements since at the time he claims his constitutional rights were violated, he was

not a prisoner, but a “releasee,” which he contends makes him akin to an “ordinary plaintiff,” with

no exhaustion requirement. Plaintiff’s objections are overruled.

C. Analysis

Under Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a court must dismiss a complaint

brought pursuant to 42 U.S.C. § 1983, when the civil rights action, if successful, would necessarily

imply the invalidity of a plaintiff's conviction or sentence, unless the plaintiff demonstrates that the

conviction or sentence has been reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such a determination, or called into question by a

federal court's issuance of a writ of habeas corpus under 28 U.S.C. § 2254. In this instance, as the

magistrate judge noted, the crux of Plaintiff's complaint is that had he been given adequate medical

care at WBH, the outcome (namely, his arrest for parole violations and subsequent parole

 

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The court notes that on December 2, 2005 Plaintiff filed a federal habeas action challenging the validity of his

parole revocation. See Miller v. Dretke, 3:05-CV-2379 (N.D. Tex., Dallas. Div.).

Memorandum Opinion and Order – Page 4

revocation) would have been different. As the magistrate judge correctly found, a ruling granting

Plaintiff the relief which he seeks would necessarily implicate the validity of his parole revocation

and inevitably affect the duration of his confinement. Therefore, under Heck Plaintiff must

demonstrate that his parole revocation has been reversed, invalidated, or expunged prior to bringing

an action under § 1983. Heck, 512 U.S. at 486-87. Finally, that Plaintiff’s § 1983/ADA complaint

implicates a parole revocation, and not his initial sentence in 1993 is without legal significance. See

generally Littles v. Board of Pardons & Paroles Div., 68 F.3d at 123 (extending Heck to proceedings

that call into question the fact or duration of parole); McGrew v. Bd. of Pardons & Paroles Div., 47

F.3d 158, 161 (5th Cir. 1995). In short, absent a showing that the confinement resulting from the

parole revocation proceeding has been invalidated by a state or federal court, Plaintiff’s § 1983/ADA

complaint is dismissed under Heck.

3

 

With regard to Plaintiff’s objections to the magistrate judge’s finding and recommendation

that Plaintiff’s complaint should be dismissed for his failure to exhaust his administrative remedies,

the court overrules Plaintiff’s objections, as the exhaustion requirements apply to him. See Witzke

v. Femal, 376 F.3d 744 (7th Cir. 2004) (claim of a constitutional violation brought by a plaintiff in

a halfway house in lieu of imprisonment following his parole revocation relates to his “conditions

of confinement” and is thus a claim “with respect to prison conditions” for purposes of § 1997e(a)).

Plaintiff’s attempts to distinguish Witzke are unavailing. 

Finally, the magistrate judge has recommended that both Plaintiff’s Motion to Appoint

Counsel and for Production of Documents (Docket # 4, 6, 7, 8, 9 and 14) be denied as moot. With

regard to Plaintiff’s Motion for Production of Documents, the court accepts the magistrate judge’s

 

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In determining whether a case presents exceptional circumstances, the court may consider the following

factors: (1) the type and complexity of the case; (2) whether the indigent plaintiff is capable of adequately presenting

his case; (3) whether the indigent is in a position to investigate adequately the case; and (4) whether the evidence will

consist in large part of conflicting testimony so as to require skill in the presentation of evidence and in cross

examination. Ulmer, 691 F.2d at 213.

Memorandum Opinion and Order – Page 5

recommendation. In granting Plaintiff’s Motion to Proceed In Forma Pauperis, the court as a matter

of course stays all discovery until defendants are ordered to answer by the court. See Filing Fee

Order ¶ 6 (Sept. 29, 2005). As the court herein determines that Plaintiff’s claims should be

dismissed at the initial stage, the court accepts the magistrate judge’s recommendation that

Plaintiff’s Motion for Production of Documents be denied as moot.

As to Plaintiff’s Motion to Appoint Counsel, however, the court determines that, in addition

to being denied as moot, it should be denied on the merits. A plaintiff in a civil rights action is not

entitled to court appointed counsel as a matter of law. See Akasike v. Fitzpatrick, 26 F.3d 510, 512

(5th Cir. 1994); Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982). The trial court is not

required to appoint counsel for an indigent plaintiff asserting a claim under 42 U.S.C. § 1983 unless

the case presents exceptional circumstances. Ulmer, 691 F.2d at 212.4

 In the instant case, Plaintiff

has not shown that his case presents any exceptional circumstances warranting the appointment of

counsel. 

II. Conclusion

Having reviewed the pleadings, file and record in this case, the findings of the magistrate

judge, and having considered Plaintiff’s objections thereto, in accordance with the foregoing, the

court determines that the findings of the magistrate judge are correct and accepts them as those of

the court, except insofar as the magistrate judge recommends that dismissal based on Heck be

 

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See generally Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (dismissal under Heck should read,

“Plaintiff’s claims are dismissed with prejudice to their being reasserted again until the Heck conditions are met.”)

(emphasis added).

Memorandum Opinion and Order – Page 6

“without prejudice,”5 and insofar as he recommends that Plaintiff’s Motion for Appointment of

Counsel be denied solely based on mootness. Plaintiff’s Objections are overruled. Accordingly,

Plaintiff’s complaint is dismissed with prejudice to its being reasserted until the conditions of Heck

v. Humphrey are met, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as it is frivolous. Alternatively,

Plaintiff’s claims are dismissed without prejudice for failure to exhaust his administrative remedies

pursuant to 42 U.S.C. § 1997e(a). Further, Plaintiff’s Motion to Appoint Counsel is denied on the

merits and, alternatively, denied as moot, and Plaintiff’s Motion for Production of Documents is

denied as moot. Finally, Plaintiff’s Motion for Leave to File an Amended [Objection] to the

Magistrate’s Recommendation as Under Fed. R. Civ. P. Rule 16 and Fed. R. Civ. P. Rule 15(b), filed

March 23, 2006, is granted and the court directs the clerk of court to file Plaintiff’s Amended

Objection to the Magistrate’s Finding and Recommendation to Dismiss, Under Fed. R. Civ. P. Rule

16 and Fed. R. Civ. P. Rule 15(b), received by the court on March 23, 2006. Final judgment will

issue by separate document.

It is so ordered this 31st day of March, 2006.

_________________________________

Sam A. Lindsay

United States District Judge

 

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