The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40370
Summary Calendar
HAROLD R. HAYES, II,
Plaintiff-Appellee,
versus
MARK A. DIAZ; ET AL.,
Defendants,
MARK A. DIAZ; GARY JOHNSON, Warden;
SABAS ENCINIA, Jr.,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
(C-98-CV-325)
_________________________________________________________________
December 27, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
This interlocutory appeal by defendant prison officials
concerns the denial of their motion for summary judgment, based on
claimed qualified immunity and seeking the dismissal of Harold
Hayes’ 42 U.S.C. § 1983 claim of denial of access to the courts
(the claim).
Hayes was found to be illiterate. After he filed his pro se
§ 1983 action, an attorney was appointed for him and filed an
amended complaint. Hayes is represented by counsel on appeal.
*
Pursuant to 5TH CIR. R. 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that this opinion should not be published and is not precedent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 CIR.
R. 47.5.4.
Defendants claim entitlement to qualified immunity for the
following reasons: 1) Hayes’ claim is barred by claim preclusion
(res judicata) because he raised it in objections to the magistrate
judge’s recommendation to dismiss his earlier 28 U.S.C. § 2254
habeas petition as time-barred and in his request for an ensuing
certificate of appealability from this court; 2) the claim is
barred by Heck v. Humphrey, 512 U.S. 477 (1994), because a
favorable ruling on the claim would mean Hayes’ underlying habeas
claims had merit; 3) Hayes’ § 1983 allegations did not establish
the claim because his § 2254 claims were frivolous; 4) Hayes’ claim
is frivolous given that he filed other pleadings during the one-
year limitations period; and 5) Defendants were not unreasonable in
denying Hayes’ numerous requests for a “legal visit”.
While we have jurisdiction to review the denial of summary
judgment claimed pursuant to qualified immunity, see Lukan v. N.
Forest ISD, 183 F.3d 342, 345 (5th Cir. 1999), cert. denied 529
U.S. 1019 (2000), claim preclusion is not inextricably intertwined
with our analysis of Defendants’ qualified immunity claims, and we
have no jurisdiction to consider those arguments in this
interlocutory appeal. See, e.g., Woods v. Smith, 60 F.3d 1161,
1166 n.29 (5th Cir. 1995), cert. denied 516 U.S. 1084 (1996).
Because we determine whether a plaintiff has asserted a
violation of a constitutional right as part of our qualified
immunity analysis, we can address Defendants’ Heck contention. See
Wells v. Bonner, 45 F.3d 90, 94 (5th Cir. 1995). The Supreme Court
in Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996), indicated that the
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underlying claims in an access-to-the-courts action should not be
frivolous; on the other hand, the Court did not suggest that the
underlying claims had to be meritorious. We find no authority to
extend Heck to a case such as this one, where the plaintiff is not
challenging his conviction and incarceration but instead the denial
of his opportunity to challenge that conviction.
There are genuine issues of material fact regarding whether
Hayes’ underlying habeas claims were frivolous. The fact that
Hayes filed other pleadings during the limitations period relevant
to the instant case does not, as a matter of law, automatically
negate his claim of denial of access to the courts; and Defendants
seek to challenge issues of fact over which we have no
jurisdiction. See Jacobs v. West Feliciana Sheriff’s Dep’t, 228
F.3d 388, 392 (5th Cir. 2000). Similarly, whether Defendants acted
reasonably in denying Hayes’ requests for a “legal visit” involves
the genuineness of material facts.
AFFIRMED
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