Hunter v. Rodriguez , 73 F. App'x 768 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 5, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 02-11317
Summary Calendar
DAVID EARL HUNTER,
Plaintiff-Appellant,
versus
VICTOR RODRIGUEZ, Director,
Executive Director Board of
Pardon and Parole; JACK KILLE,
Hearing Officer; PHILICA MITCHELL,
Hearing Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:02-CV-1903-H
Before GARWOOD, EMILIO M. GARZA and BENAVIDES, Circuit Judges.
PER CURIAM:1
David Earl Hunter, Texas state prisoner #662417, proceeding
pro se and in forma pauperis, appeals the sua sponte dismissal of
his 42 U.S.C. § 1983 complaint brought against Victor Rodriguez, in
his official capacity as Executive Director of the Texas Board of
1
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opinion should not be published and is not precedent except under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.
Pardons and Paroles, and against Parole Hearing Officer Jack Kille
and Supervising Parole Officer Philicia Mitchell. The district
court, holding that Rodriguez was entitled to absolute immunity,
dismissed Hunter’s monetary claims against Rodriguez with
prejudice, and dismissed Hunter’s monetary claims against Kille and
Mitchell without prejudice pursuant to Heck v. Humphrey, 512 U.S.
477, 487 (1994). The district court dismissed Hunter’s claims for
injunctive relief against all three defendants without prejudice to
those claims being reasserted in a petition for habeas corpus.
None of the defendants were served and none appeared. Hunter
argues that the district court erroneously determined that the
defendants were entitled to immunity because he had a
constitutional right to counsel at his parole revocation hearing.
A district court’s dismissal, under 28 U.S.C. § 1915(e)(2), of
a prisoner’s suit prior to service is reviewed for an abuse of
discretion. Boyd v. Biggers, 31 F.3d 279, 282 (5th Cir. 1994).
Whether a defendant possesses absolute immunity from suit, however,
is a question of law that is reviewed de novo. Walter v. Torres,
917 F.2d 1379, 1383 (5th Cir. 1990). Immunity is “a threshold
question, to be resolved as early in the proceedings as possible.”
Boyd, 31 F.3d at 284. It is therefore “appropriate for the
district court[] to resolve the question of absolute immunity
before reaching the Heck analysis when feasible.” Id.Defendants Mitchell and Kille are entitled to absolute
2
immunity because they were participants in the decision to revoke
Hunter’s parole. Hulsey v. Owens, 63 F.3d 354, 356 (5th Cir.
1995); Littles v. Board of Pardons and Paroles Div., 68 F.3d 122,
123 (5th Cir. 1995). To the extent that Rodriguez participated in
the revocation decision, the district court also correctly
concluded that Rodriguez is also entitled to absolute immunity.
Id. Furthermore, even if Rodriguez did not participate in the
decision to revoke Hunter’s parole, Hunter’s claim against him is
barred under Heck v. Humphrey. See McGrew v. Texas Bd. of Pardons
& Paroles, 47 F.3d 158, 160-61 (5th Cir. 1995). A dismissal of a
claim for damages based on absolute immunity or pursuant to Heck is
a dismissal with prejudice. See Boyd, 31 F.3d at 283-84, 285. A
dismissal of a claim for injunctive relief may also be made
pursuant to Heck and may be made without prejudice. See Clarke v.
Stalder, 154 F.3d 186, 190–191 (5th Cir. 1998) (en banc)(holding
that a claim for prospective injunctive relief that would imply the
invalidity of a prisoner's conviction may be dismissed without
prejudice subject to the rule of Heck v. Humphrey). Heck v.
Humphrey clearly extends to Hunter's request for injunctive relief
based on his assertion that he was denied representation at his
revocation hearing, and the district court, therefore, correctly
dismissed Hunter's claim for injunctive relief without prejudice
and correctly dismissed with prejudice Hunter's claim for damages
against Rodriguez.
3
Hunter's remaining claim, his claim for damages against
Mitchell and Kille, was also properly dismissed. However, a
dismissal based on absolute immunity should generally be with
prejudice. Boyd, 31 F.3d at 285. Indeed, “in in forma pauperis
proceedings . . . dismissals as frivolous or malicious should be
deemed to be dismissals with prejudice unless the district court
specifically dismisses without prejudice.” Marts v. Hines, 117
F.3d 1504, 1506 (5th Cir. 1997) (en banc). Of course, a district
court that chooses to dismiss a prisoner's in forma pauperis claim
as frivolous may also choose to make that dismissal without
prejudice. Id. However, “[w]hen the trial court dismisses without
prejudice it is expected that the court will assign reasons,” and
“[u]nexplained dismissals without prejudice will necessitate
remand.” Id. Neither the magistrate judge nor the district court
provided reasons for the decision to dismiss without (rather than
with) prejudice Hunter's claims for damages against Mitchell and
Kille. Accordingly, we VACATE that portion of the order
dismissing without prejudice Rodriguez's claim for damages against
Mitchell and Kille, and REMAND for entry of an order of dismissal
with prejudice. We AFFIRM that portion of the district court's
order dismissing without prejudice Hunter's claim for injunctive
relief and dismissing with prejudice Hunter's claim for damages
against Rodriguez.
AFFIRMED in part, VACATED in part, and REMANDED.
4