# United States Court **of Appeals**  **f or 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**  **Sex**

  ** Offender Adult Probation Officer; John Wiley Price,** **Dallas County**  **Commissioner; Pete Henschel, Psychologist; Stac**  **y 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**  **:** *

Th e 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* Pursuant to **5th Circuit Rule** 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Circuit Rule** 47.5.4.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: 03/26/2021No. 18

- 11480

2 in favor of inmate Frank D. McCollum regarding his pro se civil rights claims
would necessarily impl y the invalidity of the revocation of his community supervision and attendant imposition of a term of imprisonment such that he is estopped from bringing th ose claims

. T he favorable termination rule
outlined in Heck v. Humphrey 1 does not appear to foreclose at least one of
McCollum’s claims

. W e therefor e 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 serv ed a term of community supervision during his deferred adjudication for aggravated sexual assault of a child under the age of
fourteen

. 2 Th e 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 S ee 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: 03/26/2021No. 18

- 11480

3 conditions of supervision b y 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 ju dgment, h olding 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 Ap peal 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. O fficer
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 ill ness; 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: 03/26/2021No. 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 procedure s 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 se x 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 defer red 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 hi s 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 proceeding s. In t he then

- pending civil rights suit McCollum cite s , 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 stat e ; 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: 03/26/2021No. 18

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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 preve nted [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 necessar ily imply the invalidity of the revocation of McCollum’s community supervision, adjudication of guilt, and resulting conviction

. T hus , Heck
barred McCollum’s claims, warranting their dismissal as frivolous under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)

. M cCollum objected, arguing that the magistrate judge mischaracterized his contentions ; that his claims arose
“first and foremostly” under the Americans with Disabilities Act 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 convic tion 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 contend s 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: 03/26/2021No. 18

- 11480

6 II
A district court is directed to dismiss a claim by a n 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 court reviews a district court’s dismissal of a complaint as frivolous for abuse of discretion. 10 “A complaint is frivolous
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 l iberally construing McCollum’s complaint , Heck bars most of
McCollum’s claims

.
In Heck , the Supreme Court adopted the favorable termination rule,
h olding that a § 1983 suit must be dismissed if a judgment in the plaintiff’s
favor “would necessa rily 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: 03/26/2021No. 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 ne cessarily demonstrate the invalidity of
confinement or its duration.” 16 This court performs a Heck analysis by “assessing whether a claim is temporally and conce ptually 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

T o the extent that McCollum contends that , had he received

treatment or accommodations for mental il lness, 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

. B ecause Heck
determination s 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. S uccess 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.3 d 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: 03/26/2021No. 18

- 11480

8 the record, 19 and Judge Lewis enjoys absolute judicial immunity from civil
suit. 20 Th u s, the district court properly dismissed this claim against Judge
Lewis.

Heck bars McCollum’s claim against C ommunit y 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 plead ed true to failing to complete his community service assignments , and this plea serv ed 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 de ny 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 do es 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: 03/26/2021No. 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 w rit of m andamus 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 barr ed 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 w rit of m andamus 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 p sychologist Hens c hel , though, i s 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: 03/26/2021No. 18

- 11480

10 him treatment. Henschel could have acted unlawfully by denying McCollum treatment, and this unlawfulness is not alleged to have any be aring 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 no t 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 dis favored, we remand to the district court to determine whether
McCollum should be affor ded 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 sho uld 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 Pe ñ a 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