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

                                                                            FILED
                                                                         October 20, 2008
                                     No. 07-20807
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

THOMAS D WALLER

                                                  Plaintiff-Appellant

v.

BRIAN COLLIER

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-3225


Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Thomas D. Waller, Texas prisoner # 656257, appeals the dismissal of his
Section 1983 complaint as frivolous. See 42 U.S.C. § 1983. We AFFIRM with
one exception: to the extent that one of Waller’s claims must be construed as a
request for habeas corpus relief, we MODIFY the judgment to indicate that such
relief is dismissed without prejudice.
       In his complaint, Waller alleged that his parole was revoked without
benefit of a revocation hearing. The district court held that Waller’s seeking of

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-20807

Section 1983 damages based on his state parole revocation procedures was
barred until he could prove “that the conviction or sentence has been reversed
on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a
federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254.” Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994). The district court also found that Brian
Collier, Director of the Texas Board of Pardons and Paroles, was entitled to
absolute immunity. The district court’s dismissal is reviewed for an abuse of
discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
      Waller’s complaint attacked the validity of his parole revocation, thereby
calling into question the fact and duration of his confinement. Consequently, the
district court was correct that Waller had to show that the sentence imposed as
a result of the revocation proceedings had been invalidated by a state or federal
court. McGrew v. Tex. Bd. of Pardons & Paroles, 47 F.3d 158, 161 (5th Cir.
1995).   No such showing was made.          His damages claim therefore is not
cognizable under Section 1983. Id.
      Even if a complaint is barred because of Heck, “it remains appropriate for
district courts to consider the possible applicability of the doctrine of absolute
immunity.” Id. The Texas Board of Pardons and Paroles is cloaked with
Eleventh Amendment immunity from Section 1983 damages claims. Id. Waller
contends that in moving to amend his complaint to name Collier as a defendant
in his official capacity, his intention was to make the Texas Board of Pardons
and Paroles the liable party. Therefore, the district court did not abuse its
discretion in denying his motion because the Texas Board of Pardons and
Paroles is absolutely immune from suit. See id.
      Waller did not allege that Collier personally participated in his revocation
proceedings; if that participation had been shown, Collier would have been
entitled to absolute immunity. Id. Nevertheless, whether Collier would be
entitled to qualified immunity need not be addressed because Waller has not

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                                 No. 07-20807

alleged a Section 1983 claim against Collier consistent with the requirements of
McGrew. See id. Based on these facts, the district court did not abuse its
discretion by dismissing Waller’s monetary claims as frivolous.
      Waller’s Section 1983 complaint sought both injunctive and monetary
relief. To the extent Waller sought immediate release, his complaint should
have been construed as raising a claim for habeas corpus relief. Id. Waller does
not dispute the district court’s finding that his state habeas application
challenging his parole revocation is still pending in the state district court.
Therefore, insofar as his complaint can be construed as seeking habeas relief, it
must be dismissed for failure to exhaust state court remedies. Id. The district
court’s dismissal of any habeas claim is therefore MODIFIED to be a dismissal
without prejudice to Waller’s right to seek relief after his state remedies have
been exhausted. See id.; 28 U.S.C. § 2254.
      Waller is informed that our affirmance of the district court’s dismissal
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). Waller is cautioned that if he
accumulates three strikes, he will no longer be allowed to proceed in forma
pauperis in any civil action or appeal filed while he is detained in any facility
unless he is in imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
      AFFIRMED AS MODIFIED; SANCTION WARNING ISSUED.




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