McCollum v. Lewis ( 2021 )

Case: 18-11480 Document: 00515798473 Page: 1 Date Filed: 03/26/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 26, 2021
No. 18-11480
Lyle W. Cayce
Clerk
Frank D. McCollum, III,
Plaintiff—Appellant,
versus
Gracie G. Lewis, Criminal District Court Number 3;
Jane Doe, Dallas County Sex-Offender Community
Supervisor; Leah McDonald, Dallas County Sex-
Offender Adult Probation Officer; John Wiley Price,
Dallas County Commissioner; Pete Henschel,
Psychologist; Stacy Dupler, Sex Offender Therapist,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-2351
Before Owen, Chief Judge, and Davis and Dennis, Circuit Judges.
Per Curiam:*
The primary question presented in this appeal is whether a judgment
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 18-11480 Document: 00515798473 Page: 2 Date Filed: 03/26/2021
No. 18-11480
in favor of inmate Frank D. McCollum regarding his pro se civil rights claims
would necessarily imply the invalidity of the revocation of his community
supervision and attendant imposition of a term of imprisonment such that he
is estopped from bringing those claims. The favorable termination rule
outlined in Heck v. Humphrey 1 does not appear to foreclose at least one of
McCollum’s claims. We therefore affirm the district court’s judgment in
part and vacate in part, and remand for the district court to determine
whether McCollum should be afforded an opportunity to amend his
complaint against the sole remaining defendant.
I
McCollum sued Texas Criminal District Court Judge Gracie Lewis,
Dallas County Sex Offender Community Supervision Director Jane Doe,
Dallas County Sex Offender Adult Probation Officer Leah McDonald, Dallas
County Commissioner John Price, psychologist Pete Henschel, and sex
offender therapist Stacy Dupler (collectively, the County), alleging that they
failed to accommodate or treat McCollum’s mental and physical disabilities
while he served a term of community supervision during his deferred
adjudication for aggravated sexual assault of a child under the age of
fourteen. 2 The state district court revoked that term when it determined that
McCollum violated multiple supervision conditions. 3 The court then
adjudicated McCollum guilty of the offense and sentenced him to fifteen
years of imprisonment. 4 McCollum had pleaded “true” to violating his
1
512 U.S. 477 (1994).
2
See McCollum v. State, No. 05-15-01056-CR, 2016 WL 8115929, at *1 (Tex.
App.—Dallas Oct. 27, 2016, no pet.).
3
Id.4
Id.2
Case: 18-11480 Document: 00515798473 Page: 3 Date Filed: 03/26/2021
No. 18-11480
conditions of supervision by failing to pay community supervision and drug
testing fees, and by failing to complete community service. 5 Noting that
proof of even a single violation of community supervision sufficed to support
revocation, the Dallas Court of Appeals affirmed the judgment, holding that
McCollum’s pleas of true made revocation proper. 6 The appeals court also
affirmed the district court’s finding that McCollum violated the supervision
condition requiring him to participate in sex offender treatment. 7
The “STATEMENT OF CLAIM” section of McCollum’s
complaint explains that the “substance of this claim is contained in the
original writ of mandamus” in Appeal No. 17-11251. The complaint also
refers to a then-pending civil rights case, McCollum v. Valdez. 8 Finally, the
complaint refers to an addendum. That addendum alleged the acts or
omissions of each of the listed defendants as follows: Judge Lewis
established and perpetuated policies for persons with mental illness and
physical disabilities that prevented McCollum from accessing and enjoying
services for those in community supervision with mental illness. Officer
McDonald denied modifications to McCollum’s community supervision
terms and conditions after being notified by the Dallas Veterans Affairs (VA)
hospital of his mental illness; denied McCollum access to services and
programs for persons in community supervision found to have mental illness;
and created a false narrative that McCollum did not have mental illness or
other serious health issues. Community Supervisor Doe enforced
McDonald’s requirement that McCollum cease and desist claiming mental
5
See id.6
Id. at *2.
7
Id.
8
No. 3:18-CV-1778-L (BT), 2018 WL 8343675 (N.D. Tex. Dec. 26, 2018).
3
Case: 18-11480 Document: 00515798473 Page: 4 Date Filed: 03/26/2021
No. 18-11480
and physical disability and report to community service on pain of immediate
arrest and imprisonment. Commissioner Price established and perpetuated
policies and procedures in the assignment and dispatch of community service
workers like McCollum with physical and mental impairments that denied
them modifications to accommodate their disabilities. Psychologist
Henschel established and perpetuated a policy of prohibiting sex offender
clients from obtaining treatment at the VA hospital for specific neurological
disorders. Finally, therapist Dupler directed McCollum to obtain and take,
under pain of discharge from his sex offender therapy program, a selective
serotonin reuptake inhibitor—a drug contraindicated by McCollum’s
treatment program at the VA hospital.
In the writ of mandamus he cites in his complaint, McCollum sought
various forms of relief, including relief from the allegedly wrongful
revocation of his deferred adjudication community supervision. McCollum
described in greater detail the alleged errors of McDonald, Dupler, and
others in the reporting and treatment of his mental and physical illnesses,
which he alleged ultimately led to the deterioration of his cognitive and
psychomotor skills; his inability to comply with the terms of his community
supervision; his inability to assist in his own defense during his revocation
proceedings; and his inability to understand his pleas of true during those
proceedings. In the then-pending civil rights suit McCollum cites, he alleged
that he was inadequately treated for medical issues while in prison before his
revocation hearing; that the court should have ordered a competency hearing
due to his resulting mental state; that he was convicted while he was severely
impaired; and that the sheriff had ordered the interception of his grievance
forms.
McCollum contends that the County’s actions caused “irreparable
physical, psychological, and emotional harm.” He seeks declaratory and
injunctive relief and nominal, compensatory, and punitive damages.
4
Case: 18-11480 Document: 00515798473 Page: 5 Date Filed: 03/26/2021
No. 18-11480
The magistrate judge interpreted McCollum’s complaint as arising
under 42 U.S.C. § 1983 and alleging that the County “established and
enforced policies that prevented [McCollum] from obtaining medical
treatment for his mental illness and cerebr[a]-vascular dementia, and which
ultimately led to the revocation of his community supervision.” The
magistrate judge determined that a ruling on these claims would necessarily
imply the invalidity of the revocation of McCollum’s community
supervision, adjudication of guilt, and resulting conviction. Thus, Heck
barred McCollum’s claims, warranting their dismissal as frivolous under 28
U.S.C. §§ 1915(e)(2)(B) and 1915A(b). McCollum objected, arguing that the
magistrate judge mischaracterized his contentions; that his claims arose
“first and foremostly” under the Americans with Disabilities Act and Section
504 of the Rehabilitation Act; and that he did not allege that the County’s
deprivation of medical treatment and denials of modifications to his
community service work assignments had a causal relationship with the
validity of his underlying conviction and the revocation of his community
supervision. The district court overruled McCollum’s objections; accepted
the findings, conclusions, and recommendation of the magistrate judge; and
dismissed the complaint with prejudice as frivolous under § 915(e)(2)(B).
McCollum timely filed a notice of appeal.
McCollum contends that his claims were not barred by Heck because
his complaint did not mention any causal relationship between his claims and
his conviction of the underlying charge or the revocation of his community
supervision, and because his claims did not relate to or implicate his
conviction of the underlying charge or the revocation of his community
supervision. We conclude that the district court properly dismissed all but
one of McCollum’s claims.
5
Case: 18-11480 Document: 00515798473 Page: 6 Date Filed: 03/26/2021
No. 18-11480
II
A district court is directed to dismiss a claim by an inmate or in forma
pauperis litigant if the complaint is frivolous or fails to state a claim upon
which relief may be granted. 9 This court reviews a district court’s dismissal
of a complaint as frivolous for abuse of discretion. 10 “A complaint is frivolous
if it lacks an arguable basis in law or fact.” 11 A complaint lacks an arguable
basis in law if it is based on an “indisputably meritless legal theory.” 12
“Pro se prisoner complaints must be read in a liberal fashion and
should not be dismissed unless it appears beyond all doubt that the prisoner
could prove no set of facts under which he would be entitled to relief.” 13
Even liberally construing McCollum’s complaint, Heck bars most of
McCollum’s claims.
In Heck, the Supreme Court adopted the favorable termination rule,
holding that a § 1983 suit must be dismissed if a judgment in the plaintiff’s
favor “would necessarily imply the invalidity of his conviction or sentence”
and the plaintiff could not show that his conviction or sentence had been
invalidated. 14 In Wilkinson v. Dotson, 15 the Supreme Court clarified that a
“§ 1983 action is barred (absent prior invalidation)—no matter the relief
9
28 U.S.C. § 1915(e)(2)(B).
10
Rogers v. Boatright, 709 F.3d 403, 407 (5th Cir. 2013) (citing Berry v. Brady, 192
F.3d 504, 507 (5th Cir. 1999)).
11
Id. (quoting Berry, 192 F.3d at 507).
12
See Neitzke v. Williams, 490 U.S. 319, 327 (1989).
13
Taylor v. Gibson, 529 F.2d 709, 714 (5th Cir. 1976) (first citing Haines v. Kerner,
404 U.S. 519 (1972) (per curiam); then citing Watson v. Ault, 525 F.2d 886 (5th Cir. 1976);
and then citing Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972)).
14
Heck v. Humphrey, 512 U.S. 477, 487 (1994).
15
544 U.S. 74 (2005).
6
Case: 18-11480 Document: 00515798473 Page: 7 Date Filed: 03/26/2021
No. 18-11480
sought (damages or equitable relief), no matter the target of the prisoner’s
suit (state conduct leading to conviction or internal prison proceedings)—if
success in that action would necessarily demonstrate the invalidity of
confinement or its duration.” 16 This court performs a Heck analysis by
“assessing whether a claim is temporally and conceptually distinct from the
related conviction and sentence,” and by asking “whether the claims are
necessarily inconsistent with the conviction, or whether they can coexist with
the conviction or sentence without calling it into question.” 17
To the extent that McCollum contends that, had he received
treatment or accommodations for mental illness, he would not have violated
the terms of his supervision, Heck bars his claims. Success on his claim for
failure to treat or accommodate, in such an instance, would not be
independent of the revocation of his supervision. Because Heck
determinations are “analytical and fact-intensive,” 18 we analyze each claim
in turn.
As mentioned, McCollum alleges that Judge Lewis “denied [him]
access to and the enjoyment of the State’s continuum of community-based
services.” McCollum does not specify those services to which he was denied
access. Success on this claim may have no relation to the revocation of
supervision. However, this court may affirm on any grounds supported by
16
Id. at 81-82 (emphasis in original).
17
Smith v. Hood, 900 F.3d 180, 185 (5th Cir. 2018) (alteration and internal
quotation marks omitted) (first quoting Bush v. Strain, 513 F.3d 492, 498 (5th Cir. 2008);
and then quoting Ballard v. Burton, 444 F.3d 391, 400-01 (5th Cir. 2006)).
18
Strain, 513 F.3d at 497 (citing Ballard, 444 F.3d at 400-01).
7
Case: 18-11480 Document: 00515798473 Page: 8 Date Filed: 03/26/2021
No. 18-11480
the record, 19 and Judge Lewis enjoys absolute judicial immunity from civil
suit. 20 Thus, the district court properly dismissed this claim against Judge
Lewis.
Heck bars McCollum’s claim against Community Supervisor Doe.
McCollum alleges that Doe enforced Probation Officer
“McDonald’s . . . requirements that [McCollum] cease and desist in his
claims of mental and physical disability and report to the Decker Building
demolition work assignment.” McCollum pleaded true to failing to complete
his community service assignments, and this plea served as one of the appeals
court’s grounds for affirming the state district court’s revocation order. 21 A
judgment in McCollum’s favor on this claim would imply the invalidity of
this ground of revocation and is thus barred.
Likewise, Heck bars McCollum’s claims against Probation Officer
McDonald. McCollum alleges that McDonald “den[ied] [him]
modifications to his community supervision terms and conditions upon being
notified that he had been found to be a person with mental illness . . . and did
also deny him access to the required continuum of community-based
programs and services for persons in community supervision . . . and did also
embark on a campaign to create a false narrative that the plaintiff was not a
person with mental illness.” McCollum does not specify which terms
McDonald failed to modify, but the structure of his complaint suggests that
he challenges those conditions enforced by Community Supervisor Doe
19
Maria S. ex rel. E.H.F. v. Garza, 912 F.3d 778, 783 (5th Cir.) (summary calendar)
(citing Dr.’s Hosp. of Jefferson, Inc. v. Se. Med. All., Inc., 123 F.3d 301, 307 (5th Cir. 1997)),
cert. denied, 140 S. Ct. 81 (2019) (mem.).
20
See Adams v. McIlhany, 764 F.2d 294, 297 (5th Cir. 1985).
21
McCollum v. State, No. 05-15-01056-CR, 2016 WL 8115929, at *1-2 (Tex. App.—
Dallas Oct. 27, 2016, no pet.).
8
Case: 18-11480 Document: 00515798473 Page: 9 Date Filed: 03/26/2021
No. 18-11480
concerning community service work. Again, this challenge implies that it
would have been unlawful for a Texas state court to revoke McCollum’s
supervision on this ground. Thus, Heck bars this claim. The same is true for
McCollum’s claims about being denied access to “the required continuum
of community-based programs and services.” In the writ of mandamus
McCollum cites in his complaint, he alleges that this very conduct by
McDonald led McCollum to involuntarily plead “true” to violating certain
terms of his supervision. By McCollum’s own admission, a favorable
judgment on this claim would imply the invalidity of the revocation order,
grounded, in part, on his plea.
McCollum’s claim that Commissioner Price denied him
modifications to his community service requirements is likewise barred by
Heck. A favorable judgment on this claim would imply the invalidity of his
revocation based on his plea of “true” to failing to complete community
service.
Heck also bars McCollum’s claims against Dupler. McCollum alleges
that “Stacy Dupler . . . directed [McCollum] to obtain and take on pain of
discharge from his program of sex offender therapy a Selective[ ]Serotonin
Reuptake Inhibitor.” Again, the writ of mandamus challenges this very
behavior, alleging that Dupler’s actions led to McCollum’s wrongful
revocation and conviction. Given this challenge, a favorable judgment
against Dupler would necessarily imply that McCollum improperly pleaded
“true.” Thus, Heck bars this claim.
McCollum’s claim against psychologist Henschel, though, is not, at
least on its face, barred by Heck. McCollum alleges that Henschel
“prohibit[ed] sex-offender clients from obtaining treatment and therapy for
specific neurological disorders.” It is not necessarily the case that McCollum
would not have violated his supervision conditions had Henschel afforded
9
Case: 18-11480 Document: 00515798473 Page: 10 Date Filed: 03/26/2021
No. 18-11480
him treatment. Henschel could have acted unlawfully by denying McCollum
treatment, and this unlawfulness is not alleged to have any bearing on
McCollum’s plea of “true,” nor his failure to participate in sex offender
treatment. Success on this claim, as presently alleged, does not impugn any
of the appeals court’s grounds for revoking McCollum’s supervision.
The fact that Heck does not bar McCollum’s claim against Henschel,
however, does not necessarily mean that this claim will ultimately survive
dismissal. To plead a constitutional claim under § 1983, McCollum must
allege that a state actor violated a constitutional right. 22 McCollum’s
complaint contains no allegation that Henschel is a state actor, and thus
would ordinarily be dismissed. But because dismissals of pro se complaints
are disfavored, we remand to the district court to determine whether
McCollum should be afforded an opportunity to amend his pleading to cure
this deficiency. 23
* * *
For the foregoing reasons, we AFFIRM the district court’s judgment
in part and VACATE in part, and REMAND for the district court to
determine whether McCollum should be afforded an opportunity to amend
his complaint.
22
Jackson v. City of Hearne, 959 F.3d 194, 200 (5th Cir. 2020) (citing Johnson v.
Dall. Indep. Sch. Dist., 38 F.3d 198, 200 (5th Cir 1994)).
23
See Peña v. United States, 157 F.3d 984, 987 n.3 (5th Cir. 1998).
10