*Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

1

 

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-40003

Summary Calendar

_____________________

ERIC ANTONIO HOWARD

Plaintiff-Appellant,

v.

CHARLES C. BAILEY, ET AL.

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Texas

(2:93 CV 99)

 

 

August 16, 1995

Before KING, SMITH, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Howard, proceeding pro se and in forma pauperis, brought

suit under 18 U.S.C. § 1983 against Lt. Kenneth Sparks, Officer

Jim Bayuk, Titus County District Attorney Charles C. Bailey, and

Linda Hammond. Howard alleged that the four defendants committed

certain unlawful acts which culminated in the revocation of his

parole. The district court granted summary judgment with regard
 

1 Howard contends that the alleged victim's age was a

decisive factor in the revocation of his parole. Additionally,

Howard contends that the error in the district attorney's letter

is evidence of his claim of malicious prosecution.

2

to each of the defendants, and Howard now appeals. We affirm in

part and reverse and remand in part.

I. BACKGROUND

In March 1992, Lt. Sparks arrested Howard for burglary of a

habitation. District Attorney Bailey sent a letter to Howard's

parole officer, Hammond, informing her of Howard's arrest. 

Hammond began parole revocation proceedings soon thereafter. 

Bailey's letter to Hammond stated that the alleged victim of the

burglary was an elderly woman. In fact, Beulah Neal, the

complainant and alleged victim, was a young woman.1 

While Howard was still in jail on the burglary charges,

Officer Bayuk charged him with unlawful delivery of cocaine as

the result of an undercover investigation which Bayuk had

conducted. Although the State later withdrew the burglary charge

and a jury acquitted Howard of the drug charge, the parole board

found by a preponderance of the evidence that Howard had

burglarized the dwelling. Consequently, the parole board revoked

Howard's parole. 

After Howard filed his initial complaint, the magistrate

judge conducted a hearing pursuant to Spears v. McCotter, 766

F.2d 179 (5th Cir. 1985), and allowed Howard to proceed in forma
3

pauperis. Each of the defendants subsequently filed a motion for

summary judgment. The magistrate judge then recommended that the

defendants' motions be granted on the ground that Howard's claims

were premature under Heck v. Humphrey, 114 S. Ct. 2364 (1994). 

After receiving a copy of the magistrate judge's report, Howard

filed written objections. Nevertheless, the district court found

Howard's objections untimely and dismissed the suit without

prejudice. The district court held that Howard's claims under

§ 1983 were premature because he was leveling a civil attack on

the legality of his incarceration without first having had that

incarceration invalidated.

On appeal, Howard contends that his civil rights claim under

§ 1983 accrued at the time the burglary and drug charges against

him were invalidated. Because of this, Howard alleges, the four

defendants are not free from liability under § 1983 and the

district court erred in granting summary judgment on his claims.

As we construe Howard's complaint, he claims that: (1) Lt. Sparks

and Officer Bayuk are liable for false arrest and false

imprisonment; (2) District Attorney Bailey is liable for false

arrest, false imprisonment, and malicious prosecution; and (3)

Hammond is liable for false imprisonment and malicious

prosecution. Howard also attacks the district court's refusal to

allow him to amend his complaint and its finding that Howard's

objections to the magistrate judge's recommendation were

untimely. Finally, Howard asserts that the magistrate judge and

district court were biased against him. 
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II. STANDARD OF REVIEW

We review the granting of summary judgment de novo, applying

the same criteria used by the district court in the first

instance. Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir.

1994); Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994). 

First, we consult the applicable law to ascertain the material

factual issues. King v. Chide, 974 F.2d 653, 655-56 (5th Cir.

1992). We then review the evidence bearing on those issues,

viewing the facts and inferences to be drawn therefrom in the

light most favorable to the nonmoving party. Lemelle v.

Universal Mfg. Corp., 18 F.3d 1268, 1272 (5th Cir. 1994); FDIC 

v. Dawson, 4 F.3d 1303, 1306 (5th Cir. 1993), cert. denied, 114

S. Ct. 2673 (1994). Summary judgment is proper "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that

the moving party is entitled to judgment as a matter of law." 

FED. R. CIV. P. 56(c).

Under Rule 56(c), the party moving for summary judgment

bears the initial burden of informing the district court of the

basis for its motion and identifying the portions of the record

that it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986); Norman v. Apache Corp., 19 F.3d 1017, 1023 (5th Cir.

1994). If the moving party meets its burden, the burden shifts

to the non-moving party to establish the existence of a genuine
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issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio,

475 U.S. 574, 585-87 (1986); Norman, 19 F.3d at 1023. The burden

on the non-moving party is to do more than simply show that there

is some metaphysical doubt as to the material facts. Matsushita,

475 U.S. at 586.

 III. ANALYSIS

 When a state prisoner pursues a § 1983 suit, a district court

must consider whether a judgment in favor of the prisoner would

imply the invalidity of his conviction. Heck v. Humphrey, 114 S.

Ct. 2364, 2372 (1994). Consequently, a § 1983 plaintiff must

first demonstrate that a conviction has been invalidated before

recovering damages for an allegedly unconstitutional conviction. 

Id. A claim based on a conviction that has not been so

invalidated is not cognizable under § 1983. Id. A parole

revocation proceeding concerns the fact and duration of

confinement, and, therefore, it must meet the requirements of

Heck. Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995)

(holding that a judgment in favor of a plaintiff on his illegal

seizure claim would necessarily imply the invalidity of the

revocation of his probation and parole and that Heck therefore

applies to parole revocation proceedings). In the case at bar,

Howard remains in custody and he has not alleged that the

sentence imposed as a result of his parole revocation proceedings

has been invalidated by a state or federal court. Accordingly,

Howard fails to state a § 1983 cause of action for those claims
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which implicate the validity of his parole revocation. See

Jackson v. Vannoy, 49 F.3d at 177; see also McGrew v. Texas Bd.

of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (holding

that so long as a plaintiff "has not alleged that the sentence

imposed as a result of the revocation proceedings has been

invalidated by a state or federal court . . . [his] complaint

does not state a § 1983 cause of action").

Specifically, Howard's claims against his parole officer,

Hammond, for false imprisonment and for malicious prosecution

concern the time and duration of his confinement, and thus call

into question the validity of his parole revocation. Because

Howard has not demonstrated that his parole revocation has been

invalidated, the district court's grant of summary judgment with

regard to Hammond was proper.

Howard's claims against Lt. Sparks and Officer Bayuk,

however, do not necessarily implicate the validity of his parole

revocation. If a plaintiff's § 1983 action will not implicate

the validity of an outstanding criminal judgment against the

plaintiff, the action should be allowed to proceed, in the

absence of some other bar to the suit. Heck, 114 S. Ct. at 2372-

73. In particular, we have held that a claim of unlawful arrest

does not necessarily implicate the validity of a criminal

prosecution following the arrest. See Mackey v. Dickson, 47

F.3d. 744, 746 (5th Cir. 1995) (citing United States v. Wilson,

732 F.2d 404, 410 (5th Cir.), cert. denied, 469 U.S. 1099

(1984)). For example, it is not clear from the record whether
7

Lt. Sparks or Officer Bayuk obtained any evidence as part of

their allegedly unlawful arrests which would necessarily

implicate Howard's subsequent parole revocation. Thus, Howard's

claims against Lt. Sparks and Officer Bayuk may be constitutional

violations independent of any claim Howard has regarding his

parole revocation. As a consequence, the district court erred in

dismissing Howard's claims of unlawful arrest against Lt. Sparks

and Officer Bayuk pursuant to Heck. The district court's

judgment with regard to Howard's claims against these two

defendants is therefore vacated and remanded to the district

court for further consideration.

As with Lt. Sparks and Officer Bayuk, the district court

erred in dismissing Howard's claim of false arrest against

District Attorney Bailey on the basis of Heck. Theoretically, if

Bailey were liable for false arrest, it would not necessarily

call into question the validity of Howard's parole revocation. 

Nonetheless, the district court's error is harmless because

Bailey, acting in his role of district attorney, is shielded by

the doctrine of absolute immunity. Prosecutors are immune from §

1983 suits for acts that are within the scope of their

prosecutorial duties. Imbler v. Pachtman, 424 U.S. 409 (1976). 

Prosecutorial immunity has been extended to a prosecutor's

actions in initiating, investigating, and pursuing a criminal

prosecution. McGruder v. Necaise, 733 F.2d 1146, 1148 (5th Cir.

1984); Cook v. Houston Post, 616 F.2d 791, 793 (5th Cir. 1980). 

In the case at bar, it is not disputed that Bailey was acting
8

within his role as district attorney. As a result, the district

court's grant of summary judgment in favor of Bailey is affirmed.

Howard also attacks the decisions of both the magistrate

judge and the district court to deny him the opportunity to amend

his complaint. Howard complains that he was unable to properly

raise his claims of false arrest, false imprisonment, and

malicious prosecution. We review a trial court's denial of leave

to amend a complaint for abuse of discretion. Ashe v. Corley,

992 F.2d 540, 542 (5th Cir. 1993). Under Fed. R. Civ. P. 15(a),

a party may amend its pleading once as a matter of course at any

time before a responsive pleading is served; otherwise, an

amendment must be made by leave of court or consent of the

adverse party. Leave to amend should be freely granted when

justice so requires. Id. However, we will affirm the denial of

a motion to amend when the motion is untimely filed or when

amendment would be futile. Avatar Exploration, Inc. v. Chevron,

U.S.A., Inc., 933 F.2d 314, 320 (5th Cir. 1991). Furthermore, if

a complaint as amended is subject to dismissal, leave to amend

need not be granted. Pan-Islamic Trade Corp. v. Exxon Corp., 632

F.2d 539, 546 (5th Cir. 1980), cert denied, 454 U.S. 927 (1981).

In the case at bar, Howard sought to amend his complaint in

order to specify the acts which the defendants allegedly

committed against him. The basis of Howard's claim, however,

remains the same in his original complaint and in his amendments;

the two police officers and the district attorney are liable for

false arrest and false imprisonment, the district attorney is
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further liable for malicious prosecution, and the parole officer

is liable for false imprisonment and malicious prosecution. The

amendments Howard sought would be futile as to the charges

against Bailey and Hammond since Howard's claims against them are

barred. If, however, Howard wishes to further amend his complaint

while pursuing his claims against Lt. Sparks and Officer Bayuk,

he is free to request the court's leave to do so. 

Howard also attacks the district court's failure to conduct

a de novo review of his objections to the magistrate judge's

report. Under 28 U.S.C. § 636(b)(1)(C):

[W]ithin ten days after being served with a copy [of the 

proposed findings and recommendations], any party may

serve and file written objections to [the magistrate judge's]

proposed findings and recommendations as provided by

rules of court. A judge of the court shall make a de

novo determination of those portions of the report

or specified proposed findings or recommendations to which

objection is made.

From the dates stamped on Howard's objections, it appears that

the objections were indeed untimely. A pro se plaintiff's

written objections to a magistrate judge's report and

recommendation are deemed filed, however, when the document is

forwarded to prison officials for delivery to the district court. 

Thompson v. Rasberry, 993 F.2d 513, 513 (5th Cir. 1993). It is

not clear from the record exactly when Howard forwarded his

objections to the prison officials, nor does the trial court

appear to have requested this information from Howard. If, in

fact, Howard filed his objections in a timely manner, then the

trial court erred in not considering Howard's objections. Any

possible error, however, is harmless because, in his objections,
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Howard fails to raise any new issue of material fact with regard

to the defendants. See Smith v. Collins, 964 F.2d 483, 485 (5th

Cir. 1992)(applying harmless error analysis when a plaintiff

raises no new factual objections to a magistrate's report but

merely reurges the same legal arguments raised in his original

complaint). 

Howard's final issue on appeal concerns the district court's

and the magistrate judge's alleged bias against him. Howard

claims that this bias is evident in the district court's denial

of his motion to amend his complaint and in the failure of both

courts to rule on several pending motions. Adverse judicial

proceedings, however, will not ordinarily support a claim of

bias. See Liteky v. United States, 114 S. Ct. 1147, 1157 (1994). 

A court's rulings may only support a claim of judicial bias if:

(1) they reveal an opinion based on an extrajudicial source; and

(2) they demonstrate such a high degree of antagonism as to make

fair judgment impossible. Id. Howard does not allege facts

which would implicate either exception. Although the district

court erred in its reliance on Heck to dismiss some of Howard's

claims, such error does not evidence a bias against the

plaintiff. 

IV. CONCLUSION

For the foregoing reasons, the district court's grant of

summary judgment is REVERSED and REMANDED on Howard's claims

against Lt. Sparks and Officer Bayuk. In all other respects, the

district court's grant of summary judgment is AFFIRMED.
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