1Local 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should not be published.

UNITED STATES COURT OF APPEALS

for the Fifth Circuit

_____________________________________

No. 95-40141

Summary Calendar

_____________________________________

ROY COLGROVE,

Plaintiff-Appellant,

VERSUS

JAMES A. COLLINS, et al.,

Defendants-Appellees.

______________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:94-CV-1067)

______________________________________________________

(June 26, 1995)

Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:1

Colgrove challenges the district court's dismissal of his pro

se and in forma pauperis § 1983 suit pursuant to 28 U.S.C. §

1915(d). The district court dismissed Colgrove's complaint with

prejudice. Because Colgrove fails to present a justiciable

controversy, we modify the judgment so that Colgrove's complaint is
2

dismissed without prejudice for lack of jurisdiction. We affirm

the district court's judgment as modified.

I.

Ray Colgrove, a Texas state inmate, filed this 42 U.S.C.

§ 1983 action against various Texas Department of Criminal Justice

("TDCJ") officials challenging the adoption of a November 1993 TDCJ

policy prohibiting the restoration of forfeited "good time"

credits. Prior to November 1993, TDCJ policy apparently provided

that good time credits forfeited as a result of a disciplinary

action would be restored if an inmate remained free of discipline

for a period of ninety days. The new policy provided that

forfeited good time credits would no longer be restored. Colgrove

filed this § 1983 action alleging that the new policy is an

unconstitutional ex post facto provision because it retroactively

increases the length of his sentence by decreasing the likelihood

that he will accumulate good time credits toward an early release.

Colgrove also alleged that the new policy violates the Due Process

Clause.

The magistrate judge recommended that Colgrove's complaint be

dismissed as frivolous pursuant to § 1915(d). The district court

subsequently adopted the magistrate judge's recommendation and

dismissed Colgrove's complaint with prejudice. Colgrove timely

appealed. 

II.

We need not reach the merits of Colgrove's claims that the
 

2 Neither the magistrate judge nor the district court held

a hearing pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir.

1985), prior to dismissing Colgrove's complaint. Colgrove contends

that this was an abuse of discretion. However, Colgrove fails to

explain how a Spears hearing would allow him to establish standing.

Rather, he merely states that a Spears hearing was necessary to

prove his claim that the TDCJ's policy is unconstitutional. As we

explained above, Colgrove lacks standing to assert this claim. 

3

TDCJ's new policy violates the Ex Post Facto and Due Process

Clauses because Colgrove lacks standing to assert these claims.

Under Article III, standing to sue is a threshold jurisdictional

issue which we may address sua sponte. Warth v. Seldin, 422 U.S.

490, 498 (1975). In order to establish standing, Colgrove must

prove that he personally suffered "injury in fact" from the TDCJ's

policy change. Id. This harm must be "actual or imminent," not

merely conjectural or hypothetical. Whitmore v. Arkansas, 495 U.S.

149, 155 (1990). 

Colgrove does not allege that the TDCJ's new policy actually

prevented him from redeeming forfeited good time credits or that an

adverse application of the policy to his case is imminent. Rather,

Colgrove merely speculates that the policy might eventually harm

him if he were to forfeit good time credits as a result of a future

prison disciplinary proceeding. Indeed, if Colgrove remains free

of discipline, he may never suffer any harm from the TDCJ's new

policy. Such a speculative claim of injury is insufficient to

satisfy Article III's requirements for standing. Id. We therefore

conclude that the district court did not err in dismissing

Colgrove's complaint.2 Because this dismissal is based on a lack

of subject matter jurisdiction, the district court's judgment must
4

be modified to reflect that Colgrove's claims are dismissed without

prejudice. See Cinel v. Connick, 15 F.3d 1338, 1341 (5th Cir.

1994).

AFFIRMED as modified.