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William Carter v. Stuart Jenkins ( 2013 )


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  •      Case: 13-20151       Document: 00512461596         Page: 1     Date Filed: 12/05/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT  United States Court of Appeals
Fifth Circuit
FILED
December 5, 2013
No. 13-20151
Summary Calendar                        Lyle W. Cayce
Clerk
WILLIAM DALE CARTER,
Plaintiff-Appellant
v.
STUART JENKINS, Texas State Parole Division Director; MICHAEL LARSEN,
Conroe Texas Parole Agent; PAULA HARDILEK, Conroe Parole Agent;
CYNTHIA TAKACS, Conroe Parole Agent; MS. BURKS, Supervisor over Conroe
Agents; KEITH WARREN, Conroe and Huntsville Supervisor; IVY ANDERSON
YORK, Regional Director; TERRY MCKINNEY, Parole Division Preliminary
Hearing Officer; SYLVIA ANN MOKARZEL, Texas Interstate Compact Program
Supervisor; PATRICIA BIZAILLION CARTER,
Defendants-Appellees
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:12-CV-3447
Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
William Dale Carter, Illinois state prisoner # K97856, filed a
    42 U.S.C. § 1983
     complaint against several employees of the Texas Board of Pardons and
Parole and his ex-wife, Patricia Bizaillion Carter. Although Carter’s conviction
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 13-20151     Document: 00512461596       Page: 2   Date Filed: 12/05/2013
No. 13-20151
occurred in Illinois, his parole was transferred to Texas via the Texas Interstate
Compact Program.       In his complaint, Carter alleged that his parole was
wrongfully revoked due to noncompliance with special conditions of parole
imposed on sex offenders. He also asserted that, because he was never convicted
of a sex offense, the sex offender restrictions were illegal and imposed in
violation of his due process rights.      The district court dismissed Carter’s
complaint pursuant to 28 U.S.C. § 1915A as frivolous, on the basis that Carter’s
claims were barred by Heck v. Humphrey,
    512 U.S. 477
     (1994). This court
reviews the district court’s dismissal de novo. See Geiger v. Jowers,
    404 F.3d 371
    , 373 (5th Cir. 2005).
“To plead a constitutional claim for relief under § 1983, [a plaintiff must]
allege a violation of a right secured . . . by the Constitution or laws of the United
States and a violation of that right by one or more state actors.” Johnson v.
Dallas Indep. Sch. Dist.,
    38 F.3d 198
    , 200 (5th Cir. 1994). Because Carter’s ex-
wife is not a state actor, she has no liability under § 1983. See Polk County v.
Dodson,
    454 U.S. 312
    , 325 (1981). Thus, the district court did not err in
dismissing Carter’s § 1983 complaint against Patricia Bizaillion Carter as
frivolous. See § 1915A(b)(1); Berry v. Brady,
    192 F.3d 504
    , 507 (5th Cir. 1999).
To the extent that Carter challenges the validity of his parole revocation,
the district court’s decision determining that such a claim is barred by Heck was
not erroneous. See Littles v. Board of Pardons and Paroles Div.,
    68 F.3d 122
    , 123
(5th Cir. 1995). Moreover, the Texas Board of Pardons and Parole is cloaked
with Eleventh Amendment immunity from liability for parole decisions. See
    id.
    However, accepting Carter’s assertions that he was denied a hearing prior to the
imposition of the sex offender restrictions as conditions of his parole, then he has
stated a nonfrivolous claim under § 1983 seeking injunctive relief. See Meza v.
Livingston,
    607 F.3d 392
    , 401, 412 (5th Cir. 2010). Accordingly, the judgment
of the district court is vacated and remanded for further proceedings. In light
of this decision, Carter’s challenge to the dismissal of his complaint with
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Case: 13-20151    Document: 00512461596    Page: 3   Date Filed: 12/05/2013
No. 13-20151
prejudice is denied as moot. Carter also contends that the district court made
a false statement in the first sentence of its memorandum and opinion when it
stated that Carter was a former inmate of the Texas Department of Criminal
Justice. This argument is also moot because the district court granted Carter’s
motion to correct the statement. Carter’s motions for appointment of counsel
and to expedite the appeal are denied. See Cooper v. Sheriff, Lubbock County
Tex.,
    929 F.2d 1078
    , 1084 (5th Cir. 1991); 5TH CIR. RULE 34.5.
AFFIRMED IN PART; VACATED AND REMANDED IN PART;
MOTIONS DENIED.
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