Robert C. Sheppard, Petitioner-Appellant, v. State of Louisiana Board of Parole, Et Al., Respondents-Appellees. No. 88-3888. Summary Calendar., 873 F.2d 761 (5th Cir. 1989)

Docket Number: 88-3888

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Robert C. Sheppard, Homer, La., for petitioner-appellant.

Appeal from the United States District Court for the Middle District of Louisiana.

Before RUBIN, GARWOOD, and DAVIS, Circuit Judges.

PER CURIAM:

Robert C. Sheppard's notice of appeal has been construed as a request for a certificate of probable cause. See Fed.R.App.P. 22(b). We GRANT certification, affirm in part, and vacate and remand in part.

According to the allegations in his pleadings, Sheppard was released on parole in 1982. At that time, he was ordered to pay $43 per month in parole supervision fees. He complied in part with this requirement, paying a total of $1,386, before his parole was revoked, in part for failure fully to comply with the fee requirement.

Sheppard filed this suit as a civil rights complaint under 42 U.S.C. § 1983. He sought a declaration that the statute authorizing payment of parole supervision fees was applied to him in violation of the ex post facto clause of the constitution. He also sought monetary damages. The district court dismissed the case without prejudice. It held that, to the extent Sheppard's allegations challenged his present confinement, they should be pursued in habeas corpus proceedings, with the concomitant exhaustion of state remedies. It further held that Sheppard's civil rights allegations were premature and must await adjudication of his habeas corpus claims.

In Murray v. Phelps, No. 88-3302 (5th Cir. Feb. 3, 1989) 867 F.2d 1426 (table) (unpublished), a copy of which we append to this order, this Court remanded a civil rights suit to the district court for a determination whether Louisiana's parole supervision fees were applied to appellant Murray in violation of the ex post facto clause. In that case, we noted that Murray's present confinement was not due to a violation of that parole condition. Murray, slip p. 2 n. 1. Sheppard's case differs from Murray's in a critical way. Sheppard's parole was revoked, at least in part, for failure to pay the supervision fees. Although Sheppard does not seek release from prison, a determination that the fees were improper would necessarily undermine the validity of his parole revocation proceeding.

In Serio v. Members of Louisiana State Board of Pardons, 821 F.2d 1112, 1117-19 (5th Cir. 1987), we reiterated that, where a prisoner's civil rights allegations impinge in part on the validity of his current confinement, he must initially seek relief through habeas corpus proceedings. The district court in this case correctly determined that Sheppard's allegations concerning the parole supervision fees must first be pursued under habeas corpus, with exhaustion of state remedies. The district court also correctly noted that, under Serio, Sheppard's civil rights allegations were premature. However, the district court did not make a determination that dismissal without prejudice would not adversely affect those civil rights claims. See id. at 1120-21. In view of Louisiana's one-year prescriptive period for civil rights claims, see Freeze v. Griffith, 849 F.2d 172, 175 (5th Cir. 1988), the current dismissal, even without prejudice, might preclude a later civil rights action.

Accordingly, we affirm the dismissal without prejudice of Sheppard's habeas corpus claims. We vacate and remand the dismissal of his civil rights claims for a determination whether they should be dismissed without prejudice or stayed pending exhaustion of habeas corpus remedies.

CERTIFICATE OF PROBABLE CAUSE GRANTED AFFIRMED IN PART, VACATED AND REMANDED IN PART

[fn*] 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.

[fn1] Plaintiff's complaint is properly captioned as an action under 42 U.S.C. § 1983 rather than as a petition for habeas corpus because the revocation of his parole in 1987 was not based upon a violation of the condition of parole that he challenges here. Plaintiff does not allege that his present imprisonment is wrongful. Rather, he seeks reimbursement of the supervision fees that he paid between June of 1984 and March of 1987 and other damages.

[fn2] On appeal, plaintiff mentions procedural due process only in his "Statement Regarding Oral Argument" and not in the body of his brief.

[fn3] Although Murray's contention that the Act does not, by its terms, apply to offenses committed before July 1, 1982, is erroneous, the fact that the Act does apply to persons who committed their offenses before the effective date of the Act, raises a colorable constitutional claim.

[fn4] We note that few parole conditions other than required fees or payments would be susceptible to this analysis. Conditions regulating the parolee's conduct would probably be considered analogous to recidivist statutes which have not been found to violate the ex post facto clause. See Gryger v. Burke, 334 U.S. 728, 732 [68 S.Ct. 1256, 1258, 92 L.Ed. 1683] (1948).