Montoya v. Jones ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT December 15, 2004
Charles R. Fulbruge III
Clerk
No. 04-20225
Summary Calendar
SANTOS MONTOYA,
Plaintiff-Appellant,
versus
MR. JONES; D.A. TURRUBIARTE, Major; FRANCIS CHERIAN, Medical
Director; BRADIE BACHMANN, Physician Assistant; MR. ROESLER,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(4:03-CV-4445)
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PER CURIAM:*
Santos Montoya, Texas state prisoner # 544493, appeals, pro
se, the dismissal, pursuant to 28 U.S.C. § 1915A(b)(1), of his 42
U.S.C. § 1983 action and denial of his FED. R. CIV. P. 59(e) motion.
Montoya contends: because the district court denied leave to
proceed in forma pauperis, it erred in invoking 28 U.S.C. § 1915A
in dismissing his civil rights action. Montoya’s claim is
unavailing because § 1915A “applies regardless of whether the
plaintiff has paid a filing fee or is proceeding in forma
*
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this opinion should not be published and is not precedent except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.
pauperis”. Ruiz v. United States, 160 F.3d 273, 274-75 (5th Cir.
1998).
Montoya claims the district court erred in denying his FED. R.
CIV. P. 59(e) motion, which maintained the pendency of his state and
federal habeas applications equitably tolled the two-year
limitations period, rendering his civil rights complaint timely
filed. Montoya has not demonstrated he was prevented from pursuing
his § 1983 civil rights claims by the pendency of his state or
federal habeas proceedings. See Holmes v. Texas A&M Univ., 145
F.3d 681, 684-85 (5th Cir. 1998); Gartrell v. Gaylor, 981 F.2d 254,
257 (5th Cir. 1993). The denial was not an abuse of discretion.
See Midland West Corp. v. FDIC, 911 F.2d 1141, 1145 (5th Cir.
1990).
Montoya cannot attack his disciplinary proceedings resulting
in the loss of good time credits in a § 1983 action until his
“convictions” in those proceedings have been expunged, reversed, or
otherwise set aside. Edwards v. Balisok, 520 U.S. 641, 648 (1997);
Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998)(en banc),
cert. denied, 525 U.S. 1151 (1999). Because Montoya’s claims call
into question the validity of those convictions, he must satisfy
the conditions of Heck v. Humphrey, 512 U.S. 477, 484-87 (1994),
before he can proceed in a civil rights action for damages.
Accordingly, the dismissal is AFFIRMED, but the judgment is
MODIFIED to state that his claims challenging his disciplinary
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convictions are DISMISSED WITH PREJUDICE to their being asserted
again until the Heck conditions are met. Johnson v. McElveen, 101
F.3d 423, 424 (5th Cir. 1996).
AFFIRMED AS MODIFIED
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