United States Court of Appeals

for the Fifth Circuit

No. 18-11480

Frank D. McCollum, III, 

Plaintiff—Appellant,

versus

Gracie G. Lewis, Criminal District Court Number 3; 

Jane Doe, Dallas County Sex-Offender Community 

Supervisor; Leah McDonald, Dallas County SexOffender Adult Probation Officer; John Wiley Price, 

Dallas County Commissioner; Pete Henschel, 

Psychologist; Stacy Dupler, Sex Offender Therapist, 

Defendants—Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

USDC No. 3:18-CV-2351

Before Owen, Chief Judge, and Davis and Dennis, Circuit Judges.

Per Curiam:*

The primary question presented in this appeal is whether a judgment 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 26, 2021

Lyle W. Cayce

Clerk

Case: 18-11480 Document: 00515798473 Page: 1 Date Filed: 03/26/2021
No. 18-11480

2

in favor of inmate Frank D. McCollum regarding his pro se civil rights claims 

would necessarily imply the invalidity of the revocation of his community 

supervision and attendant imposition of a term of imprisonment such that he 

is estopped from bringing those claims. The favorable termination rule 

outlined in Heck v. Humphrey1 does not appear to foreclose at least one of 

McCollum’s claims. We therefore affirm the district court’s judgment in 

part and vacate in part, and remand for the district court to determine 

whether McCollum should be afforded an opportunity to amend his 

complaint against the sole remaining defendant. 

I

McCollum sued Texas Criminal District Court Judge Gracie Lewis, 

Dallas County Sex Offender Community Supervision Director Jane Doe, 

Dallas County Sex Offender Adult Probation Officer Leah McDonald, Dallas 

County Commissioner John Price, psychologist Pete Henschel, and sex 

offender therapist Stacy Dupler (collectively, the County), alleging that they 

failed to accommodate or treat McCollum’s mental and physical disabilities 

while he served a term of community supervision during his deferred 

adjudication for aggravated sexual assault of a child under the age of 

fourteen.

2 The state district court revoked that term when it determined that 

McCollum violated multiple supervision conditions.

3 The court then 

adjudicated McCollum guilty of the offense and sentenced him to fifteen

years of imprisonment.4 McCollum had pleaded “true” to violating his 

1 512 U.S. 477 (1994).

2 See McCollum v. State, No. 05-15-01056-CR, 2016 WL 8115929, at *1 (Tex. 

App.—Dallas Oct. 27, 2016, no pet.). 

3 Id.

4 Id.

Case: 18-11480 Document: 00515798473 Page: 2 Date Filed: 03/26/2021
No. 18-11480

3

conditions of supervision by failing to pay community supervision and drug 

testing fees, and by failing to complete community service.5

 Noting that 

proof of even a single violation of community supervision sufficed to support 

revocation, the Dallas Court of Appeals affirmed the judgment, holding that 

McCollum’s pleas of true made revocation proper.

6 The appeals court also 

affirmed the district court’s finding that McCollum violated the supervision 

condition requiring him to participate in sex offender treatment.7

The “STATEMENT OF CLAIM” section of McCollum’s 

complaint explains that the “substance of this claim is contained in the

original writ of mandamus” in Appeal No. 17-11251. The complaint also 

refers to a then-pending civil rights case, McCollum v. Valdez.8 Finally, the 

complaint refers to an addendum. That addendum alleged the acts or

omissions of each of the listed defendants as follows: Judge Lewis

established and perpetuated policies for persons with mental illness and 

physical disabilities that prevented McCollum from accessing and enjoying 

services for those in community supervision with mental illness. Officer 

McDonald denied modifications to McCollum’s community supervision 

terms and conditions after being notified by the Dallas Veterans Affairs (VA) 

hospital of his mental illness; denied McCollum access to services and 

programs for persons in community supervision found to have mental illness; 

and created a false narrative that McCollum did not have mental illness or

other serious health issues. Community Supervisor Doe enforced 

McDonald’s requirement that McCollum cease and desist claiming mental

5 See id.

6 Id. at *2.

7 Id.

8 No. 3:18-CV-1778-L (BT), 2018 WL 8343675 (N.D. Tex. Dec. 26, 2018).

Case: 18-11480 Document: 00515798473 Page: 3 Date Filed: 03/26/2021
No. 18-11480

4

and physical disability and report to community service on pain of immediate

arrest and imprisonment. Commissioner Price established and perpetuated 

policies and procedures in the assignment and dispatch of community service 

workers like McCollum with physical and mental impairments that denied 

them modifications to accommodate their disabilities. Psychologist 

Henschel established and perpetuated a policy of prohibiting sex offender 

clients from obtaining treatment at the VA hospital for specific neurological

disorders. Finally, therapist Dupler directed McCollum to obtain and take,

under pain of discharge from his sex offender therapy program, a selective

serotonin reuptake inhibitor—a drug contraindicated by McCollum’s

treatment program at the VA hospital.

In the writ of mandamus he cites in his complaint, McCollum sought 

various forms of relief, including relief from the allegedly wrongful 

revocation of his deferred adjudication community supervision. McCollum 

described in greater detail the alleged errors of McDonald, Dupler, and 

others in the reporting and treatment of his mental and physical illnesses, 

which he alleged ultimately led to the deterioration of his cognitive and 

psychomotor skills; his inability to comply with the terms of his community 

supervision; his inability to assist in his own defense during his revocation 

proceedings; and his inability to understand his pleas of true during those 

proceedings. In the then-pending civil rights suit McCollum cites, he alleged 

that he was inadequately treated for medical issues while in prison before his 

revocation hearing; that the court should have ordered a competency hearing 

due to his resulting mental state; that he was convicted while he was severely 

impaired; and that the sheriff had ordered the interception of his grievance

forms.

McCollum contends that the County’s actions caused “irreparable 

physical, psychological, and emotional harm.” He seeks declaratory and 

injunctive relief and nominal, compensatory, and punitive damages.

Case: 18-11480 Document: 00515798473 Page: 4 Date Filed: 03/26/2021
No. 18-11480

5

The magistrate judge interpreted McCollum’s complaint as arising 

under 42 U.S.C. § 1983 and alleging that the County “established and 

enforced policies that prevented [McCollum] from obtaining medical 

treatment for his mental illness and cerebr[a]-vascular dementia, and which 

ultimately led to the revocation of his community supervision.” The 

magistrate judge determined that a ruling on these claims would necessarily 

imply the invalidity of the revocation of McCollum’s community 

supervision, adjudication of guilt, and resulting conviction. Thus, Heck 

barred McCollum’s claims, warranting their dismissal as frivolous under 28 

U.S.C. §§ 1915(e)(2)(B) and 1915A(b). McCollum objected, arguing that the 

magistrate judge mischaracterized his contentions; that his claims arose

“first and foremostly” undertheAmericanswith DisabilitiesAct and Section 

504 of the Rehabilitation Act; and that he did not allege that the County’s

deprivation of medical treatment and denials of modifications to his

community service work assignments had a causal relationship with the 

validity of his underlying conviction and the revocation of his community 

supervision. The district court overruled McCollum’s objections; accepted 

the findings, conclusions, and recommendation of the magistrate judge; and 

dismissed the complaint with prejudice as frivolous under § 915(e)(2)(B). 

McCollum timely filed a notice of appeal.

McCollum contends that his claims were not barred by Heck because 

his complaint did not mention any causal relationship between his claims and 

his conviction of the underlying charge or the revocation of his community 

supervision, and because his claims did not relate to or implicate his 

conviction of the underlying charge or the revocation of his community 

supervision. We conclude that the district court properly dismissed all but 

one of McCollum’s claims. 

Case: 18-11480 Document: 00515798473 Page: 5 Date Filed: 03/26/2021
No. 18-11480

6

II

A district court is directed to dismiss a claim by an inmate or in forma 

pauperis litigant if the complaint is frivolous or fails to state a claim upon 

which relief may be granted.9 This courtreviews a district court’s dismissal 

of a complaint as frivolous for abuse of discretion.10 “Acomplaintisfrivolous

if it lacks an arguable basis in law or fact.”11 A complaint lacks an arguable 

basis in law if it is based on an “indisputably meritless legal theory.”12

“Pro se prisoner complaints must be read in a liberal fashion and 

should not be dismissed unless it appears beyond all doubt that the prisoner 

could prove no set of facts under which he would be entitled to relief.”13 

Even liberally construing McCollum’s complaint, Heck bars most of 

McCollum’s claims. 

In Heck, the Supreme Court adopted the favorable termination rule, 

holding that a § 1983 suit must be dismissed if a judgment in the plaintiff’s 

favor “would necessarily imply the invalidity of his conviction or sentence”

and the plaintiff could not show that his conviction or sentence had been 

invalidated.14 In Wilkinson v. Dotson,

15 the Supreme Court clarified that a 

“§ 1983 action is barred (absent prior invalidation)—no matter the relief 

9 28 U.S.C. § 1915(e)(2)(B).

10 Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (citing Berry v. Brady, 192 

F.3d 504, 507 (5th Cir. 1999)).

11 Id. (quoting Berry, 192 F.3d at 507). 

12 See Neitzke v. Williams, 490 U.S. 319, 327 (1989).

13 Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir. 1976) (first citing Haines v. Kerner, 

404 U.S. 519 (1972) (per curiam); then citing Watson v. Ault, 525 F.2d 886 (5th Cir. 1976); 

and then citing Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972)).

14 Heck v. Humphrey, 512 U.S. 477, 487 (1994).

15 544 U.S. 74 (2005).

Case: 18-11480 Document: 00515798473 Page: 6 Date Filed: 03/26/2021
No. 18-11480

7

sought (damages or equitable relief), no matter the target of the prisoner’s 

suit (state conduct leading to conviction or internal prison proceedings)—if 

success in that action would necessarily demonstrate the invalidity of 

confinement or its duration.”16 This court performs a Heck analysis by 

“assessing whether a claim is temporally and conceptually distinct from the

related conviction and sentence,” and by asking “whether the claims are 

necessarily inconsistent with the conviction, or whether they can coexist with 

the conviction or sentence without calling it into question.”17 

To the extent that McCollum contends that, had he received 

treatment or accommodations for mental illness, he would not have violated 

the terms of his supervision, Heck bars his claims. Success on his claim for 

failure to treat or accommodate, in such an instance, would not be

independent of the revocation of his supervision. Because Heck 

determinations are “analytical and fact-intensive,”18 we analyze each claim

in turn.

As mentioned, McCollum alleges that Judge Lewis “denied [him] 

access to and the enjoyment of the State’s continuum of community-based 

services.” McCollum does not specify those services to which he was denied 

access. Success on this claim may have no relation to the revocation of 

supervision. However, this court may affirm on any grounds supported by 

16 Id. at 81-82 (emphasis in original).

17 Smith v. Hood, 900 F.3d 180, 185 (5th Cir. 2018) (alteration and internal 

quotation marks omitted) (first quoting Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008); 

and then quoting Ballard v. Burton, 444 F.3d 391, 400-01 (5th Cir. 2006)).

18 Strain, 513 F.3d at 497 (citing Ballard, 444 F.3d at 400-01).

Case: 18-11480 Document: 00515798473 Page: 7 Date Filed: 03/26/2021
No. 18-11480

8

the record,19 and Judge Lewis enjoys absolute judicial immunity from civil 

suit.20 Thus, the district court properly dismissed this claim against Judge 

Lewis. 

Heck bars McCollum’s claim against Community Supervisor Doe. 

McCollum alleges that Doe enforced Probation Officer 

“McDonald’s . . . requirements that [McCollum] cease and desist in his 

claims of mental and physical disability and report to the Decker Building 

demolition work assignment.” McCollum pleaded true to failing to complete 

his community service assignments, and this plea served as one of the appeals 

court’s grounds for affirming the state district court’s revocation order.21 A 

judgment in McCollum’s favor on this claim would imply the invalidity of 

this ground of revocation and is thus barred. 

Likewise, Heck bars McCollum’s claims against Probation Officer 

McDonald. McCollum alleges that McDonald “den[ied] [him] 

modifications to his community supervision terms and conditions upon being 

notified that he had been found to be a person with mental illness . . . and did 

also deny him access to the required continuum of community-based 

programs and services for persons in community supervision . . . and did also 

embark on a campaign to create a false narrative that the plaintiff was not a 

person with mental illness.” McCollum does not specify which terms 

McDonald failed to modify, but the structure of his complaint suggests that 

he challenges those conditions enforced by Community Supervisor Doe

19 Maria S. ex rel. E.H.F. v. Garza, 912 F.3d 778, 783 (5th Cir.) (summary calendar) 

(citing Dr.’s Hosp. of Jefferson, Inc. v. Se. Med. All., Inc., 123 F.3d 301, 307 (5th Cir. 1997)), 

cert. denied, 140 S. Ct. 81 (2019) (mem.).

20 See Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).

21 McCollum v. State, No. 05-15-01056-CR, 2016 WL 8115929, at *1-2 (Tex. App.—

Dallas Oct. 27, 2016, no pet.). 

Case: 18-11480 Document: 00515798473 Page: 8 Date Filed: 03/26/2021
No. 18-11480

9

concerning community service work. Again, this challenge implies that it

would have been unlawful for a Texas state court to revoke McCollum’s 

supervision on this ground. Thus, Heck bars this claim. The same is true for 

McCollum’s claims about being denied access to “the required continuum 

of community-based programs and services.” In the writ of mandamus 

McCollum cites in his complaint, he alleges that this very conduct by 

McDonald led McCollum to involuntarily plead “true” to violating certain 

terms of his supervision. By McCollum’s own admission, a favorable 

judgment on this claim would imply the invalidity of the revocation order, 

grounded, in part, on his plea.

McCollum’s claim that Commissioner Price denied him 

modifications to his community service requirements is likewise barred by 

Heck. A favorable judgment on this claim would imply the invalidity of his 

revocation based on his plea of “true” to failing to complete community 

service. 

Heck also bars McCollum’s claims against Dupler. McCollum alleges 

that “Stacy Dupler . . . directed [McCollum] to obtain and take on pain of 

discharge from his program of sex offender therapy a Selective[ ]Serotonin 

Reuptake Inhibitor.” Again, the writ of mandamus challenges this very 

behavior, alleging that Dupler’s actions led to McCollum’s wrongful 

revocation and conviction. Given this challenge, a favorable judgment 

against Dupler would necessarily imply that McCollum improperly pleaded 

“true.” Thus, Heck bars this claim.

McCollum’s claim against psychologist Henschel, though, is not, at 

least on its face, barred by Heck. McCollum alleges that Henschel 

“prohibit[ed] sex-offender clients from obtaining treatment and therapy for 

specific neurological disorders.” It is not necessarily the case that McCollum 

would not have violated his supervision conditions had Henschel afforded 

Case: 18-11480 Document: 00515798473 Page: 9 Date Filed: 03/26/2021
No. 18-11480

10

him treatment. Henschel could have acted unlawfully by denying McCollum 

treatment, and this unlawfulness is not alleged to have any bearing on 

McCollum’s plea of “true,” nor his failure to participate in sex offender 

treatment. Success on this claim, as presently alleged, does not impugn any 

of the appeals court’s grounds for revoking McCollum’s supervision. 

The fact that Heck does not bar McCollum’s claim against Henschel, 

however, does not necessarily mean that this claim will ultimately survive 

dismissal. To plead a constitutional claim under § 1983, McCollum must 

allege that a state actor violated a constitutional right.22 McCollum’s 

complaint contains no allegation that Henschel is a state actor, and thus 

would ordinarily be dismissed. But because dismissals of pro se complaints 

are disfavored, we remand to the district court to determine whether 

McCollum should be afforded an opportunity to amend his pleading to cure 

this deficiency.23

* * *

For the foregoing reasons, we AFFIRM the district court’s judgment

in part and VACATE in part, and REMAND for the district court to 

determine whether McCollum should be afforded an opportunity to amend 

his complaint.

22 Jackson v. City of Hearne, 959 F.3d 194, 200 (5th Cir. 2020) (citing Johnson v. 

Dall. Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir 1994)).

23 See Peña v. United States, 157 F.3d 984, 987 n.3 (5th Cir. 1998).

Case: 18-11480 Document: 00515798473 Page: 10 Date Filed: 03/26/2021