     Case: 10-20047     Document: 00511242210          Page: 1    Date Filed: 09/23/2010




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

                                                 FILED
                                                                        September 23, 2010
                                     No. 10-20047
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WOODROW MILLER,

                                                   Plaintiff-Appellant

v.

HARRIS COUNTY, TEXAS, c/o County Judge Ed Emmett; HONORABLE
BELINDA J. HILL, Individually and as District Judge; THERESA CHANG,
Individually and as former Harris County District Clerk; CHARLES
ROSENTHAL, Individually and as former Harris County District Attorney;
EXECUTIVE DIRECTOR TEXAS DEPARTMENT OF PUBLIC SAFETY; M.D.
KAREN GOLLAHER, Individually and as Agent-Employee of GHBI,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3515


Before JOLLY, GARZA and STEWART, Circuit Judges.
PER CURIAM:*
        Woodrow Miller, now Texas prisoner # 1535217, filed a civil rights
complaint in the district court seeking an award of damages and declaratory and
injunctive relief. Miller contended that the defendants violated his right to due



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                    No. 10-20047

process by acting adversely against him in reliance on a March 2, 2006, order
imposing conditions of community supervision in cause number 876,249. The
2006 order related to a 2002 order of deferred adjudication. Miller’s guilt was
adjudicated in 2008. See Miller v. Quarterman, 2009 WL 2163125 (S.D. Tex.
July 16, 2009) (unpublished).
      The district court determined that Miller’s complaint was barred under the
rule in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).           It dismissed the
complaint as frivolous pursuant to 28 U.S.C. § 1915A. Miller gave timely notice
of his appeal. We review such dismissals for an abuse of discretion. See Martin
v. Scott, 156 F.3d 578, 580 (5th Cir. 1998).
      The claims asserted against defendants Belinda Hill and Charles
Rosenthal relate to acts performed in their judicial and prosecutorial capacities.
Because Hill and Rosenthal are absolutely immune from suit, the dismissal with
prejudice of Miller’s claims against them is AFFIRMED. See Boyd v. Biggers, 31
F.3d 279, 284-85 (5th Cir. 1994).
      Miller contends that the district court erred in dismissing his complaint
without giving him an opportunity to show that the Heck bar does not apply.
Miller has not shown in his brief that he could have made such a showing, and
he did not make such a showing in his motion for a new trial. See also Martin,
156 F.3d at 580 (recognizing that there is no requirement that a plaintiff be
given notice prior to dismissal of his complaint as frivolous pursuant to § 1915A).
      Because the March 2, 2006, order imposing conditions of community
supervision was rendered in Miller’s criminal case, and because a decision in his
favor against the remaining defendants would necessarily imply the invalidity
of the deferred adjudication order and the judgment adjudicating his guilt, the
district court properly dismissed Miller’s claims against the remaining
defendants for damages as premature. See Heck, 512 U.S. at 486-87; DeLeon v.
City of Corpus Christi, 488 F.3d 649, 656 (5th Cir. 2007) (holding that a deferred


                                         2
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                                   No. 10-20047

adjudication order is a conviction for the purposes of Heck’s favorable
termination rule). Miller also sought declaratory and injunctive relief. Because
the claims for declaratory and injunctive relief call into question the validity of
the deferred adjudication order and order adjudicating his guilt, they were
dismissed properly under the rule in Heck. See Clarke v. Stalder, 154 F.3d 186,
190-91 (5th Cir. 1998) (en banc). Because the preferred practice is to dismiss
Heck-barred claims with prejudice to their being asserted again until the Heck
conditions are met, see DeLeon, 488 F.3d at 657, the judgment is modified
accordingly.
      The district court’s implicit refusal to take supplemental jurisdiction over
Miller’s request for an accounting of payments made against a fine and court
costs imposed in connection with the judgment adjudicating his guilt is
construed as a dismissal of that claim without prejudice. See Connors v. Graves,
538 F.3d 373, 378 (5th Cir. 2008).
      Miller’s     contention   that   the       Prison   Litigation   Reform   Act     is
unconstitutional is foreclosed. See Norton v. Dimazana, 122 F.3d 286, 290-91
(5th Cir. 1997).
      AFFIRMED AS MODIFIED.




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