   Case: 09-20486       Document: 00511087063          Page: 1    Date Filed: 04/21/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 21, 2010
                                     No. 09-20486
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




CRAIG E MENDENHALL,

                                                   Plaintiff-Appellant,

versus

CHARLEY VALDEZ; REBECCA PRICE; PAMELA WILLIAMS,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:08-CV-3255




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*


       Craig Mendenhall, Texas prisoner # 359197, appeals the dismissal of his
civil rights action for failure to state a claim on which relief may be granted. His



       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
   Case: 09-20486    Document: 00511087063 Page: 2         Date Filed: 04/21/2010
                                 No. 09-20486

claims are based on his eligibility for release on mandatory supervision. He
seeks declaratory and injunctive relief and compensatory and punitive damages.
      The dismissal of a complaint under rule 12(b)(6) of the Federal Rules of
Criminal Procedure is reviewed de novo. In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007). A plaintiff fails to state a claim on which re-
lief can be granted where the complaint does not contain “enough facts to state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). This court may affirm the judgment on any ground sup-
ported by the record. Sojourner T. v. Edwards, 974 F.2d 27, 30 (5th Cir. 1992).
      Mendenhall argues that the district court erred in its determination that
his claims are time-barred, and he contends that he has stated constitutional
claims on which relief can be granted. His assertions amount to an attack on the
validity of determinations made by the Texas Department of Criminal Justice
(“TDCJ”) regarding his eligibility for release on mandatory supervision. “[W]hen
a state prisoner is challenging the very fact or duration of his physical imprison-
ment, and the relief he seeks is a determination that he is entitled to immediate
release or a speedier release from that imprisonment, his sole federal remedy is
a writ of habeas corpus.” Preiser v. Rodriguez, 411 U.S. 475, 499 (1973). Men-
denhall cannot seek an earlier release from prison in a civil rights action, so he
cannot obtain declaratory and injunctive relief. See id.
      Mendenhall likewise cannot obtain monetary damages on his claims re-
garding the correctness of determinations on his eligibility for release on manda-
tory supervision. Where, in a state prisoner’s suit for damages under 42 U.S.C.
§ 1983, “a judgment in favor of the plaintiff would necessarily imply the invalidi-
ty of his conviction or sentence . . . the complaint must be dismissed unless the
plaintiff can demonstrate that the conviction or sentence has already been inval-
idated.” Heck v. Humphrey, 512 U.S. 477, 487 (1994). Because Mendenhall
cannot show that the TDCJ’s determination regarding his eligibility for release
on mandatory supervision has been invalidated, under the principles of Heck he

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                                 No. 09-20486

cannot maintain a suit for damages under § 1983 based on those determinations.
See McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 160-61 (5th Cir.
1995).
      Mendenhall argues that the district court erred in denying him leave to
amend his complaint under rule 15 of the Federal Rules of Criminal Procedure.
Because he is precluded from pursuing the claim he sought to add, amendment
would have been futile, and the court did not reversibly err in denying it. See
Avatar Exploration, Inc. v. Chevron, U.S.A., Inc., 933 F.2d 314, 321 (5th Cir.
1991).
      The judgment is AFFIRMED. The motion for appointment of counsel is
DENIED. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir. 1982).
      The district court’s dismissal for failure to state a claim counts as one
strike for purposes of 28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d
383, 387 (5th Cir. 1996); § 1915(e)(2)(b)(ii). Mendenhall is hereby warned that
if he accumulates three strikes, he may not proceed in forma pauperis in any civ-
il action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See § 1915(g).




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