Webb v. Owens , 308 F. App'x 775 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 27, 2009
No. 06-51422
Summary Calendar Charles R. Fulbruge III
Clerk
THOMAS HAROLD WEBB
Plaintiff-Appellant
v.
RISSIE OWENS; NANCY SWAN; EZIO LEITE; KEN NEILL; RICHARD WOOD
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:05-CV-233
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Thomas Harold Webb filed a civil-rights complaint against the defendants
in relation to his parole conditions, their actions towards him in relation to his
parole supervision, and the revocation of his term of parole. He appeals from the
district court’s judgment granting summary judgment for the defendants and
dismissing his claims, some with prejudice and some without prejudice. He also
appeals from the district court’s denial of his motion for relief from judgment,
filed pursuant to FED. R. CIV. P. 60(b).
*
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should not be published and is not precedent except under the limited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.
No. 06-51422
Webb argues that the district court erred by denying his request for
declaratory relief stating that he was entitled to an independent polygraph
examiner of his own choosing to comply with the conditions of his parole. Citing
Wilkinson v. Dotson, 544 U.S. 74, 79-80 (2005), Webb asserts that, contrary to
the district court’s holding that this claim was barred under Heck v. Humphrey,
512 U.S. 477, 486-87 (1994), Heck authorizes the grant of declaratory relief for
42 U.S.C. § 1983 claims. However, Wilkinson does not support Webb’s
argument. The district court properly held that Webb’s claim that he was denied
his right to choose his own polygraph examiner was barred under Heck.
Accordingly, the district court did not abuse its discretion by denying Webb’s
request for declaratory relief on this issue. See Gates v. Texas Dep’t of Protective
and Regulatory Servs., 537 F.3d 404, 438 (5th Cir. 2008).
Webb also contends that the district court erred by dismissing his price-
fixing claims against Richard Wood and Ezio Leite. Those claims were premised
on Webb’s assertion that Wood’s polygraph examination fee was excessive.
Because the uncontested summary judgment evidence indicated that there was
no genuine issue of material fact that Wood’s polygraph examination fee was
within the range of fees from other polygraph examiners in the area, the district
court did not err in granting summary judgment for Leite and Wood regarding
the price-fixing claims. See FED. R. CIV. P. 56(c); Cousin v. Small, 325 F.3d 627,
637 (5th Cir. 2003).
Webb next argues that the district court erred by dismissing his claims
against Rissie Owens for failure to train her staff, gross negligence, and for
failing to prevent Leite, Swan, Wood, and Neill from conspiring against him in
violation of 42 U.S.C. § 1985(2). Webb’s claim alleging Owens’s failure to
prevent a § 1985(2) conspiracy arose under 42 U.S.C. § 1986. In his reply brief,
Webb abandoned his § 1985(2) conspiracy claim. Because a § 1986 claim is
dependent upon the existence of a § 1985 claim, the district court’s dismissal of
Webb’s § 1986 claim is affirmed.
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No. 06-51422
Webb’s § 1983 claims against Owens alleging failure to train and gross
negligence are based upon alleged deficiencies in the process leading to the
revocation of Webb’s parole and confinement. If Heck bars a challenge to the
underlying constitutional violation, it also bars a challenge against a supervisor
based upon that underlying constitutional violation. See Connors v. Graves, 538
F.3d 373, 377-78 (5th Cir. 2008). Because Heck bars Webb’s challenge to those
alleged deficiencies in the parole revocation process, the district court properly
granted summary judgment for Owens as to Webb’s § 1983 claims. See Cousin,
325 F.3d at 637.
In his Rule 60(b) motion, Webb argued that: (1) although he was unable
to show during the pendency of his lawsuit how he had been prejudiced by the
denial of law library access during his term of parole, he subsequently learned
that he should not have been subjected to many of his parole conditions,
including the denial of law library access; and (2) he subsequently learned that
the polygraph examinations he was ordered to take while on parole and some
other aspects of his parole were in violation of official parole policy, thereby
invalidating the basis for his parole revocation and supporting his claim of
retaliation by the defendants. Both of these arguments relied, at least in part,
upon Webb’s assertion that the transcript of his parole revocation hearing and
his learning of various official parole policies constituted newly discovered
evidence. Webb has failed to show that either the parole revocation transcript
or the various official parole policies constitute newly discovered evidence. See
FED. R. CIV. P. 60(b)(2); Hesling v. CSX Transp., Inc., 396 F.3d 632, 639 (5th Cir.
2005). Accordingly, the district court did not abuse its discretion by denying
Webb’s Rule 60(b) motion. See Provident Life & Accident Ins. Co. v. Goel, 274
F.3d 984, 997 (5th Cir. 2001).
The judgments of the district court are AFFIRMED.
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