*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should not be published.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-40167

Summary Calendar

JOSEPH ALFRED ROME, JR.,

Plaintiff-Appellant,

and

ELIZABETH B. ROME, JOSEPH A. ROME, SAMANTHA ROME,

Plaintiffs,

versus

CARLA QUINN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

For the Eastern District of Texas

(4:94-CV-288)

(June 14, 1995)

Before THORNBERRY, HIGGINBOTHAM AND BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant, Joseph A. Rome, Jr., is an inmate currently

incarcerated in the Institutional Division of the Texas Department

of Criminal Justice (TDCJ). He appeals the district court's

dismissal as frivolous his pro se, in forma pauperis civil rights

action. We affirm.
 

1 Rome has not pursued on appeal his request for declaratory

relief. Consequently, he has abandoned this claim. See Reeves v.

Collins, 27 F.3d 174, 176 (5th Cir. 1994).

2

I. BACKGROUND AND RELEVANT FACTS

On April 8, 1988, Rome was released to parole in the form of

mandatory supervision after serving four years of a twelve year

sentence. He asserts he did not acknowledge his release as

required by state law, and states that on April 12, 1988, he filed

a state habeas corpus application seeking full discharge. TEX.

CODE CRIM. PROC. Art. 11.07, § 2, et seq. Shortly thereafter, a

pre-revocation warrant alleging Rome had violated conditions of his

release was issued by the Texas Board of Pardons and Paroles. Rome

asserts the state district court recommended that relief be

granted; however, because the pre-revocation warrant was withdrawn

during pendency of his state writ, the Texas Court of Criminal

Appeals denied said writ without written order in July 1988. On

April 24, 1993, he was arrested pursuant to the warrant which he

claims was withdrawn in 1988 and, after a hearing, his parole in

the form of mandatory supervision was revoked.

Rome filed this 42 U.S.C. § 1983 action against Appellees

Carla Quinn and Jacalyn Banta, employees of the TDCJ, Pardons and

Paroles Division, seeking a declaratory judgment that they had

maliciously abused the legal process by denying him due process and

due course of law, failing to allow him to assert any defenses, and

using a perjured affidavit at the revocation proceeding.1 In
 

2 The complaint also sought compensatory and punitive damages

on behalf of Rome's family. The family members have not appealed

the district court's dismissal of this cause.

 

3 The magistrate judge also noted that this same action had

been dismissed without prejudice to allow Appellant to exhaust

appropriate habeas corpus remedies.

3

addition, he sought damages for false imprisonment and punitive

damages.2

The magistrate judge first found that because Rome had

challenged the fact or duration of his confinement rather than

conditions of confinement, the claim should be litigated as a

habeas corpus action. Prieser v. Rodriguez, 411 U.S. 475, 484

(1973).3 The magistrate then recommended the complaint be

dismissed as frivolous because Rome had failed to allege an

arguable § 1983 claim in light of Heck v. Humphrey, U.S. ,

114 S.Ct. 2364 (1994). He also recommended that Rome be warned

that he will be subject to sanctions if he continues to file

frivolous or malicious suits. The district court adopted the

magistrate judge's recommendations, and ordered the cause dismissed

with prejudice pursuant to 28 U.S.C. § 1915(d).

II. DISCUSSION

A. Allegations

Rome argues on appeal that the process used to revoke his

parole was unconstitutional and beyond the authority of the Board.

He seeks damages for violation of his constitutional rights in

connection with the revocation proceeding and does not attack his

conviction or sentence. Specifically, he makes the following
4

arguments: the Board had no authority to revoke parole because he

never signed the "Mandatory Supervision Contract;" the Board

withdrew the pre-revocation warrant in order to avoid a hearing by

the Texas Court of Criminal Appeals on his state habeas

application; the revocation process was unconstitutional because

there were no Board members present and parole was revoked by an

unconstitutionally appointed hearing officer; he was denied

compulsory process at the hearing and his right to a speedy hearing

was violated, and; the "District and Circuit Courts" have protected

the unconstitutional state laws and the Board's failure to conform

to state laws and the constitution.

B. Analysis

Our review of a district court's dismissal of an in forma

pauperis complaint as frivolous is based on an abuse of discretion

standard. Denton v. Hernandez, U.S. , 112 S.Ct. 1728, 1734

(1992). We find no error in the district court's dismissal of the

instant complaint.

In Heck v. Humphrey, the Supreme Court has recently held that

in order to recover damages for harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, the

plaintiff in a § 1983 action must prove the conviction or sentence

was reversed on appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determinations,

or called into question by a federal court's issuance of a writ of

habeas corpus. 114 S.Ct. at 2372. A claim for damages bearing
5

that relationship to the conviction or sentence which has not been

so invalidated is not cognizable by a § 1983 action. Ibid.

Rome does not demonstrate that his conviction or sentence has

been invalidated. Nor does he allege that his conviction or

sentence has been reversed, expunged, set aside by a state court,

or called into question by a federal court's issuance of a writ of

habeas corpus.

Rome argues Heck is inapplicable to the instant cause because

he is not attacking the validity of his conviction or sentence.

However, this court has recently held a similar complaint not

cognizable under § 1983, and properly dismissed under Heck's

rationale. See Cotton v. Texas Dept. of Criminal Justice, No. 94-

10532 (5th Cir. August 26, 1994) (unpublished). Citing Jackson v.

Torres, 720 F.2d 877 (5th Cir. 1983), we first noted that an action

attacking the validity of parole proceedings calls into question

the fact and duration of confinement. Cotton, slip op. at 2. We

then held that because Cotton had sought money damages for alleged

improprieties in his parole revocation proceedings, this claim was

precisely the type of suit proscribed by Heck. Id., slip op. at 3.

We also held that because Cotton sued members of the Parole Board

only for actions taken in their official capacity, and consequently

they enjoyed eleventh amendment immunity, Cotton's claim lacked an

arguable basis in law. Ibid.

Since Rome's seeks monetary damages for alleged improprieties

in his parole revocation proceeding, this claim is not cognizable

in a § 1983 action. Also, since his claim was against employees of
 

4 Alternatively, the district court could have dismissed this

cause because the Appellees are arguably absolutely immune from

liability in a § 1983 action. Thomas v. Scherer, No. 94-11006,

slip op. at 3 (5th Cir. March 22, 1995) (unpublished). See also,

Boyd v. Biggers, 31 F.3d 279, 284 (5th Cir. 1994); Walter v.

Torres, 917 F.2d 1379, 1383 (5th Cir. 1990). 

6

the TDCJ Pardons and Paroles Division, his claim lacked an arguable

basis in fact or law.4

III. CONCLUSION

The district court did not abuse its discretion in dismissing

the cause as frivolous.

AFFIRMED.