McCullough v. TX Dept Criminal Jus ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-20475
Conference Calendar
__________________
MICHAEL DWYER MCCULLOUGH,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE -
INSTITUTIONAL DIVISION,
Defendant-Appellee.
- - - - - - - - - -
Appeal from the United States District Court
for the Southern District of Texas
USDC No. CA H-93-2709
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(October 18, 1995)
Before POLITZ, Chief Judge, and REAVLEY and SMITH, Circuit Judges.
PER CURIAM:*
Michael Dwyer McCullough filed a pro se civil rights
complaint, 42 U.S.C. § 1983, against the Texas Department of
Criminal Justice - Institutional Division alleging that he was
improperly denied good-time credits. The district court
dismissed the complaint as barred by the Eleventh Amendment.
McCullough filed a timely notice of appeal from the judgment and
a Rule 60(b) motion. The district court denied the Rule 60(b)
motion because any § 1983 claim was premature under Heck v.
Humphrey, 114 S. Ct. 2364 (1994).
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-20475
-2-
The district court should permit a pro se plaintiff to amend
a complaint if it appears that there is a potential ground for
relief, see Gallegos v. La. Code of Criminal Procedures Art. 658,
858 F.2d 1091, 1092 (5th Cir. 1988), but the district court need
not permit futile amendments. See Davis v. Louisiana State
Univ., 876 F.2d 412, 413-14 (5th Cir. 1989). McCullough's claim
is not cognizable under § 1983; the district court properly
dismissed the complaint. Heck, 114 S. Ct. at 2372.
McCullough's argument that the district court improperly
dismissed the complaint as barred by the Eleventh Amendment need
not be addressed. McCullough's claim is not cognizable under
Heck, and the judgment is affirmed on this alternative ground.
See Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992),
cert. denied, 113 S. Ct. 1414 (1993).
McCullough did not file a notice of appeal after the
district court denied his Rule 60(b) motion; this court does not
have jurisdiction over the order denying the motion. McKethan v.
Texas Farm Bureau, 996 F.2d 734, 744 (5th Cir. 1993), cert.
denied, 114 S. Ct. 694 (1994).
We caution McCullough that any additional frivolous appeals
filed by him or on his behalf will invite the imposition of
sanctions. To avoid sanctions, McCullough is further cautioned
to review all pending appeals to ensure that they do not raise
arguments that are frivolous because they have been previously
decided by this court.
Appeal DISMISSED. Howard v. King, 707 F.2d 215, 219-20 (5th
Cir. 1983); 5th Cir. R. 42.2.