district court’s refusal to construe § 1983 action as a habeas was appropriate because the prisoner failed to exhaust state remedies
How later courts described this case
- district court’s refusal to construe § 1983 action as a habeas was appropriate because the prisoner failed to exhaust state remedies
- “The district court properly declined to construe Walker’s complaint as a habeas petition because Walker failed to exhaust his state remedies.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 16, 2009
No. 08-60691
Conference Calendar Charles R. Fulbruge III
Clerk
DEMARIO DONTEZ WALKER
Plaintiff-Appellant
v.
MISSISSIPPI PAROLE BOARD; DEPUTY COMMISSIONER LORA COLE;
CHRISTOPHER B EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; CHIEF RECORDS OFFICER GLORIA GIBB
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:08-CV-132
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Demario Dontez Walker, Mississippi state prisoner # L1625, appeals from
the district court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state
a claim upon which relief may be granted. In his complaint, he argued that
(1) his due process rights were violated by the revocation of his parole and the
loss of his street-time credit and (2) M ISS. C ODE A NN. § 47-7-27, which governs
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-60691
the procedure for parole revocation, was unconstitutional. As relief, Walker
sought reinstatement of his term of parole and the restoration of his street-time
credit.
Because success in Walker’s action “would necessarily demonstrate the
invalidity of confinement or its duration[,]” a § 1983 action is barred, and his
claims must be brought in a habeas corpus petition. Wilkinson v. Dotson, 544
U.S. 74, 82 (2005). The district court properly declined to construe Walker’s
complaint as a habeas petition because Walker failed to exhaust his state
remedies. The district court’s dismissal for failure to state a claim was therefore
proper. See Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
Walker’s appeal is without arguable merit and is frivolous. See Howard
v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). It is therefore dismissed. See 5 TH
C IR. R. 42.2. Walker has already been informed that he has accumulated three
strikes under 28 U.S.C. § 1915(g). Walker v. Norwood, No. 3:08-cv-275-TSL-JCS,
2009 WL 387337, at *1 (S.D. Miss. Feb. 13, 2009). Walker is no longer able to
proceed in forma pauperis in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g). In order to avoid the imposition of an
additional sanction, Walker should review any pending appeals and actions and
move to dismiss any that are frivolous.
APPEAL DISMISSED; SANCTION WARNING ISSUED.
2