* Pursuant 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-20807

Summary Calendar

THOMAS D WALLER

Plaintiff-Appellant

v.

BRIAN COLLIER

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:07-CV-3225

Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Thomas D. Waller, Texas prisoner # 656257, appeals the dismissal of his

Section 1983 complaint as frivolous. See 42 U.S.C. § 1983. We AFFIRM with

one exception: to the extent that one of Waller’s claims must be construed as a

request for habeas corpus relief, we MODIFY the judgmentto indicate that such

relief is dismissed without prejudice.

In his complaint, Waller alleged that his parole was revoked without

benefit of a revocation hearing. The district court held that Waller’s seeking of

United States Court of Appeals

Fifth Circuit

F I L E D

October 20, 2008

Charles R. Fulbruge III

Clerk
No. 07-20807

2

Section 1983 damages based on his state parole revocation procedures was

barred until he could prove “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 determination, or called into question by a

federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994). The district court also found that Brian

Collier, Director of the Texas Board of Pardons and Paroles, was entitled to

absolute immunity. The district court’s dismissal is reviewed for an abuse of

discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).

Waller’s complaint attacked the validity of his parole revocation, thereby

calling into question the fact and duration of his confinement. Consequently, the

district court was correct that Waller had to show that the sentence imposed as

a result of the revocation proceedings had been invalidated by a state or federal

court. McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.

1995). No such showing was made. His damages claim therefore is not

cognizable under Section 1983. Id.

Even if a complaint is barred because of Heck, “it remains appropriate for

district courts to consider the possible applicability of the doctrine of absolute

immunity.” Id. The Texas Board of Pardons and Paroles is cloaked with

Eleventh Amendment immunity from Section 1983 damages claims. Id. Waller

contends that in moving to amend his complaint to name Collier as a defendant

in his official capacity, his intention was to make the Texas Board of Pardons

and Paroles the liable party. Therefore, the district court did not abuse its

discretion in denying his motion because the Texas Board of Pardons and

Paroles is absolutely immune from suit. See id.

Waller did not allege that Collier personally participated in his revocation

proceedings; if that participation had been shown, Collier would have been

entitled to absolute immunity. Id. Nevertheless, whether Collier would be

entitled to qualified immunity need not be addressed because Waller has not
No. 07-20807

3

alleged a Section 1983 claim against Collier consistent with the requirements of

McGrew. See id. Based on these facts, the district court did not abuse its

discretion by dismissing Waller’s monetary claims as frivolous. 

Waller’s Section 1983 complaint sought both injunctive and monetary

relief. To the extent Waller sought immediate release, his complaint should

have been construed as raising a claim for habeas corpus relief. Id. Waller does

not dispute the district court’s finding that his state habeas application

challenging his parole revocation is still pending in the state district court.

Therefore, insofar as his complaint can be construed as seeking habeas relief, it

must be dismissed for failure to exhaust state court remedies. Id. The district

court’s dismissal of any habeas claim is therefore MODIFIED to be a dismissal

without prejudice to Waller’s right to seek relief after his state remedies have

been exhausted. See id.; 28 U.S.C. § 2254.

Waller is informed that our affirmance of the district court’s dismissal

counts as one strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v.

Hammons, 103 F.3d 383, 387 (5th Cir. 1996). Waller is cautioned that if he

accumulates three strikes, he will no longer be allowed to proceed in forma

pauperis in any civil action or appeal filed while he is detained in any facility

unless he is in imminent danger of serious physical injury. See 28 U.S.C.

§ 1915(g).

AFFIRMED AS MODIFIED; SANCTION WARNING ISSUED.