Colgrove v. Collins ( 1995 )

  •                     UNITED STATES COURT OF APPEALS
                             for the Fifth Circuit
                                 No. 95-40141
                               Summary Calendar
                                 ROY COLGROVE,
                          JAMES A. COLLINS, et al.,
                 Appeal from the United States District Court
                       for the Eastern District of Texas
                             (June 26, 1995)
    Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
         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
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    dismissed without prejudice for lack of jurisdiction.          We affirm
    the district court's judgment as modified.
         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
         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
         We need not reach the merits of Colgrove's claims that the
    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
              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.
    be modified to reflect that Colgrove's claims are dismissed without
    prejudice. See Cinel v. Connick, 
    15 F.3d 1338
    , 1341 (5th Cir.
         AFFIRMED as modified.