Lutz v. Carlson ( 1999 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-11352
Conference Calendar
JOE L. LUTZ,
Plaintiff-Appellant,
versus
CHRIS CARLSON, Parole Board Member; CRAIG HINES, Parole Board
Members; UNKNOWN, Two Parole Board Members,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:97-CV-616-E
--------------------
December 16, 1999
Before JOLLY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Joe L. Lutz, Texas prisoner # 389813, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 action for failure to
state a claim upon which relief may be granted. Lutz argues that
Heck v. Humphrey, 512 U.S. 477 (1994) should not bar this
litigation because the underlying criminal offense upon which his
parole was revoked was dismissed. Heck v. Humphrey applies to
claims for damages related to violations of constitutional rights
*
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that this opinion should not be published and is not precedent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. 98-11352
-2-
in parole proceedings. McGrew v. Texas Bd. of Pardons & Paroles,
47 F.3d 158, 160-61 (5th Cir. 1995). Because an action attacking
the validity of a parole proceeding calls into question the fact
and duration of confinement, a § 1983 plaintiff must prove that a
sentence imposed as a result of revocation proceedings has been
invalidated by a state or federal court. Id. at 161. The fact
that the underlying criminal charges were dismissed does not
affect the validity of the parole proceedings which Lutz seeks to
challenge and does not bar application of Heck. See Else v.
Johnson, 104 F.3d 82, 83 (5th Cir. 1997).
Lutz also argues that he was denied equal protection,
arguing that other inmates, similarly situated, were released and
reinstated to parole after having been found guilty on the same
class of misdemeanor charges. In order to state a claim for the
denial of equal protection, Lutz would have had to allege that he
was treated more severely in his parole revocation due to his
race or other improper motive, and not just due to an
inconsistent application or result. See Thompson v. Patteson,
985 F.2d 202, 207 (5th Cir. 1993). Lutz has not made such
allegations of improper motive.
The district court did not err in dismissing Lutz’s action
for failure to state a claim. Further, Lutz’s appeal is without
arguable merit and is frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983). Because the appeal is frivolous, it
is dismissed. See 5th Cir. R. 42.2.
No. 98-11352
-3-
The dismissal of this appeal as frivolous counts as a strike
for purposes of 28 U.S.C. § 1915(g). We caution Lutz that once
he accumulates three strikes, he may not proceed IFP 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 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS.