holding that Heck barred plaintiff’s due process claim for damages because he was not released after his parole hearing and rendered his claim legally frivolous
How later courts described this case
- holding that Heck barred plaintiff’s due process claim for damages because he was not released after his parole hearing and rendered his claim legally frivolous
- concluding that the plaintiff’s claim that the denial of his application was erroneous because it considered “inaccurate parole documents” was barred by Heck
- “[E]ven a pro se appellant cannot raise new theories for relief for the first time on appeal.” (italics omitted)
- liberal construction of pro se litigant’s filings does not preclude finding that filing is frivolous
Written by the judges who cited it.
The opinion
Case: 22-10094 Document: 00516851901 Page: 1 Date Filed: 08/09/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 9, 2023
No. 22-10094
Lyle W. Cayce
____________
Clerk
Leo P. Collins,
Plaintiff—Appellant,
versus
Dallas Leadership Foundation; James Reed, C.E.O. and
Director; Salvatore Alfredo, Chaplain,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:21-CV-2568
______________________________
Before Clement, Elrod, and Willett, Circuit Judges.
Edith Brown Clement, Circuit Judge:
Leo Collins is a former Texas state prisoner proceeding pro se and in
forma pauperis. Collins alleges in his 42 U.S.C. § 1983 action that James Reed,
the director of his former state prison’s faith-based dorm program, conspired
with Salvatore Alfredo, a prison chaplain, to retaliate against him for filing a
complaint under the Prison Rape Elimination Act (PREA), 34 U.S.C. §§
30301–09. He challenges the district court’s order dismissing his civil-rights
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). We AFFIRM the
dismissal of Collins’ complaint.
Case: 22-10094 Document: 00516851901 Page: 2 Date Filed: 08/09/2023
No. 22-10094
I
As alleged in his briefing and complaint, Collins was a member of the
faith-based dorm program. While he was enrolled, fellow inmates played
homosexual “come-on” games. Finding the conduct inappropriate, and
perhaps dangerous, Collins reported the behavior to his prison’s PREA
coordinator. In late February 2021, Collins completed the program and
moved into his prison’s general population facilities.
Fortunately for Collins, he was also up for a parole review around this
time. He believed his chances were good. After all, he had successfully
completed the faith-based dorm program, and his parole officer told him the
parole board “should be sending [him] on up the road!” Collins spoke with
Salvatore Alfredo, a prison chaplain, about ensuring his time in the dorm
program reflected as “C” for “Complete” in his parole materials. Alfredo
assured Collins that he was good to go, but that wasn’t the case. In fact, when
the parole board met, they saw an “E” for “Enrolled” in Collins’ paperwork
regarding the faith-based dorm program instead of the “C” for “Complete,”
which would have accurately reflected the progress he had made. In the end,
the board denied parole at that time. 1
Collins confronted Reed and Alfredo about his inaccurate parole
materials and asked the PREA coordinator for advice. Collins then decided
to initiate a grievance through the prison’s internal grievance procedure,
which took about six months to complete. Subsequently, Collins filed this
lawsuit.
_____________________
1
Collins eventually received parole. But he is not a free man. Currently, he is
federally incarcerated at Forrest City Medium FCI in Arkansas. See Find an inmate, Fed.
Bureau of Prisons, https://www.bop.gov/inmateloc (search for BOP Register
Number 15509-078) (last visited July 20, 2023).
2
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No. 22-10094
At the district court, the magistrate judge screened Collins’ IFP
complaint under 28 U.S.C. § 1915(e)(2)(B)(i). He determined that Heck v.
Humphrey, 512 U.S. 477 (1994), barred Collins’ claims as frivolous. The
magistrate judge then supplemented his recommendation after Collins filed
a nearly identical amended complaint, again coming to the same conclusion.
The district court adopted the recommendation and supplement and issued
a judgment dismissing Collins’ complaint.
II
The district court must dismiss a plaintiff’s IFP civil-rights complaint
if it is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). We review the district court’s
order dismissing a complaint as frivolous for an abuse of discretion. Hamilton
v. Lyons, 74 F.3d 99, 102 (5th Cir. 1996). And “[a] § 1983 claim which falls
under the rule in Heck is legally frivolous unless the conviction or sentence at
issue has been reversed, expunged, invalidated, or otherwise called into
question.” Id. We also construe Collins’ filings liberally because he is a pro se
litigant. See Haines v. Kerner, 404 U.S. 519, 520–21 (1972).
III
Collins’ complaint asserts two causes of action: First, a due process
violation regarding his allegedly flawed parole hearing; and Second, a
retaliation claim based on his report to the PREA coordinator. 2 Both theories
_____________________
2
In his brief, Collins raises a myriad of further constitutional claims for the first
time. But even a pro se appellant cannot raise new theories for relief for the first time on
appeal. See Johnson v. Cheney, 313 F. App’x 732, 733 (5th Cir. 2009) (per curiam) (“This
court does not consider . . . new legal theories raised for the first time on appeal.” (citing
Leverette v. Louisville Ladder Co., 183 F.3d, 342 (5th Cir. 1999))).
3
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No. 22-10094
are premised on the same actions by Reed and Alfredo. The Heck rule bars
both theories. 3
In Heck, the Supreme Court determined that “when a state prisoner
seeks damages in a § 1983 suit, the district court must consider whether a
judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence.” 512 U.S. at 487. The Court clarified what it meant
by a “sentence” in Wilkinson v. Dotson, informing us that “[i]n context, Heck
uses the word ‘sentence’ to refer not to prison procedures, but to substantive
determinations as to the length of confinement,” such as parole decisions.
544 U.S. 74, 83 (2005). So, if a court’s judgment would imply the invalidity
of a parole determination, “the complaint must be dismissed unless the
plaintiff can demonstrate that the [parole decision] has already been
invalidated” by being “reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court’s issuance of a writ
of habeas corpus.” Heck, 512 U.S. at 487. The Heck rule applies whether a
plaintiff is currently incarcerated or not. See Randell v. Johnson, 227 F.3d 300,
301 (5th Cir. 2000) (per curiam).
Collins relies on Dotson for the proposition that Heck does not bar his
claim. There, the Supreme Court explained that claims of alleged due process
violations during parole proceedings were not barred under the rule laid out
_____________________
3
Regarding Collins’ due process claim, even if Heck did not apply, the magistrate
judge was correct to dismiss that cause of action under 28 U.S.C. § 1915(e)(2)(B)(ii)
because it “fail[ed] to state a claim on which relief may be granted.” Under our precedent,
“because Texas prisoners have no protected liberty interest in parole they cannot mount a
challenge against any state parole review procedure on procedural (or substantive) Due
Process grounds.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (citations
omitted). Consequently, because Collins bases his due process cause of action on the
unfairness of his parole hearing, it fails to state a claim on which we can grant relief.
4
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in Heck because an attack on the constitutionality of the parole proceeding’s
procedures would not “necessarily have meant immediate release or a
shorter period of incarceration; the prisoners attacked only the wrong
procedures, not the wrong result.” Dotson, 544 U.S. at 78–80 (alteration
adopted) (quotation marks and citation omitted).
But Collins is not really challenging his parole procedures at all. Instead,
he argues that the parole board’s determination was erroneous because it
considered his inaccurate parole documents—an error Reed and Alfredo
allegedly inserted into his parole review. In Collins’ own words, Reed and
Alfredo’s actions “prevented [him] from a favorable review decision that
could have expedited his parole release,” and he seeks $1,000 a day “since
his parole was denied.” The implication is clear: But for the error in his
paperwork, he would have been released, and he deserves damages because
he was not. Collins thus challenges a “wrong result”—which Dotson
specifically prohibits. 544 U.S. at 80.
We have addressed a substantially similar case before. In Jeffery v.
Owens, we held that Heck barred a prisoner from attacking a parole denial
which he alleged was due to a specific error in his parole proceedings. 216 F.
App’x 396, 397 (5th Cir. 2006) (per curiam). In that case, the plaintiff alleged
that his parole record included arrests that had been expunged before review
and that, as a result, the individuals on his parole board violated his civil rights
by considering the faulty information. Id. And as with Collins, the plaintiff in
Jeffery demanded punitive and compensatory monetary damages as part of
his requested relief. As we found then, “[g]ranting [compensatory and
punitive damages] necessarily implies that [the plaintiff] was denied parole
in error.” Id. Consequently, it ran afoul of Heck’s prohibition of granting such
relief “until the decision to deny [the plaintiff] parole is reversed or otherwise
called into question.” Id. (citing Heck, 512 U.S. at 486–87).
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Collins argues that his parole decision was invalidated by a subsequent
parole hearing that granted him parole. He says that “parole and release are
‘executive orders’ by the State of Texas, equivalent to a judge’s orders or
decisions. Meaning, [they] satisfy[] the Heck favorable termination
requirement.” However, by his admission, “another parole proceeding”
ultimately released him. And the Certificate of Parole itself does not imply
that the result of the prior parole hearing was invalid, much less that it was
invalid due to the parole board having inaccurate information at the time of
the preceding review.
Of course, Jeffery does not bind us. But its logic is persuasive. Cf.
Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (“An unpublished
opinion issued after January 1, 1996 is not controlling precedent, but may be
persuasive authority.”). The purpose of the rule laid out in Heck was to stop
civil tort actions for damages where the plaintiff would be required “to prove
the unlawfulness of his . . . confinement.” 512 U.S. at 486. Here, Collins
believes he is owed money damages because he was not released after his
early 2021 parole hearing due to Reed and Alfredo’s alleged retaliatory
actions. Granting such relief would necessarily imply the invalidity of his
confinement after that hearing for reaching the wrong determination.
Consequently, Heck renders Collins’ claims frivolous.
We AFFIRM. Collins’ outstanding motions are DENIED as moot.
6