Colgrove v. Collins ( 1995 )


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  •                     UNITED STATES COURT OF APPEALS
                             for the Fifth Circuit
    
                    _____________________________________
    
                                 No. 95-40141
                               Summary Calendar
                    _____________________________________
    
    
    
                                 ROY COLGROVE,
    
                                                        Plaintiff-Appellant,
    
                                     VERSUS
    
    
                          JAMES A. COLLINS, et al.,
    
                                                       Defendants-Appellees.
    
            ______________________________________________________
    
                 Appeal from the United States District Court
                       for the Eastern District of Texas
                                 (6:94-CV-1067)
            ______________________________________________________
    
                             (June 26, 1995)
    Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
    
    PER CURIAM:1
    
         Colgrove challenges the district court's dismissal of his pro
    
    se and in forma pauperis § 1983 suit pursuant to 28 U.S.C. §
    
    1915(d).     The district court dismissed Colgrove's complaint with
    
    prejudice.      Because   Colgrove   fails   to   present   a   justiciable
    
    controversy, we modify the judgment so that Colgrove's complaint is
    
    
        1
         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    should not be published.
    dismissed without prejudice for lack of jurisdiction.          We affirm
    
    the district court's judgment as modified.
    
    
    
                                        I.
    
         Ray Colgrove, a Texas state inmate, filed this 42 U.S.C.
    
    § 1983 action against various Texas Department of Criminal Justice
    
    ("TDCJ") officials challenging the adoption of a November 1993 TDCJ
    
    policy    prohibiting   the   restoration   of   forfeited   "good   time"
    
    credits.    Prior to November 1993, TDCJ policy apparently provided
    
    that good time credits forfeited as a result of a disciplinary
    
    action would be restored if an inmate remained free of discipline
    
    for a period of ninety days.             The new policy provided that
    
    forfeited good time credits would no longer be restored.        Colgrove
    
    filed this § 1983 action alleging that the new policy is an
    
    unconstitutional ex post facto provision because it retroactively
    
    increases the length of his sentence by decreasing the likelihood
    
    that he will accumulate good time credits toward an early release.
    
    Colgrove also alleged that the new policy violates the Due Process
    
    Clause.
    
         The magistrate judge recommended that Colgrove's complaint be
    
    dismissed as frivolous pursuant to § 1915(d).        The district court
    
    subsequently adopted the magistrate judge's recommendation and
    
    dismissed Colgrove's complaint with prejudice.          Colgrove timely
    
    appealed.
    
                                       II.
    
         We need not reach the merits of Colgrove's claims that the
    
    
                                        2
    TDCJ's new policy violates the Ex Post Facto and Due Process
    
    Clauses because Colgrove lacks standing to assert these claims.
    
    Under Article III, standing to sue is a threshold jurisdictional
    
    issue which we may address sua sponte. Warth v. Seldin, 
    422 U.S. 490
    , 498 (1975).        In order to establish standing, Colgrove must
    
    prove that he personally suffered "injury in fact" from the TDCJ's
    
    policy change. Id.       This harm must be "actual or imminent," not
    
    merely conjectural or hypothetical. Whitmore v. Arkansas, 
    495 U.S. 149
    , 155 (1990).
    
         Colgrove does not allege that the TDCJ's new policy actually
    
    prevented him from redeeming forfeited good time credits or that an
    
    adverse application of the policy to his case is imminent. Rather,
    
    Colgrove merely speculates that the policy might eventually harm
    
    him if he were to forfeit good time credits as a result of a future
    
    prison disciplinary proceeding.       Indeed, if Colgrove remains free
    
    of discipline, he may never suffer any harm from the TDCJ's new
    
    policy.    Such a speculative claim of injury is insufficient to
    
    satisfy Article III's requirements for standing. Id.           We therefore
    
    conclude   that   the    district   court   did   not   err   in   dismissing
    
    Colgrove's complaint.2      Because this dismissal is based on a lack
    
    of subject matter jurisdiction, the district court's judgment must
    
    
        2
              Neither the magistrate judge nor the district court held
    a hearing pursuant to Spears v. McCotter, 
    766 F.2d 179
     (5th Cir.
    1985), prior to dismissing Colgrove's complaint. Colgrove contends
    that this was an abuse of discretion. However, Colgrove fails to
    explain how a Spears hearing would allow him to establish standing.
    Rather, he merely states that a Spears hearing was necessary to
    prove his claim that the TDCJ's policy is unconstitutional. As we
    explained above, Colgrove lacks standing to assert this claim.
    
                                         3
    be modified to reflect that Colgrove's claims are dismissed without
    
    prejudice. See Cinel v. Connick, 
    15 F.3d 1338
    , 1341 (5th Cir.
    
    1994).
    
         AFFIRMED as modified.
    
    
    
    
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