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

                                                 FILED
                                                                         November 30, 2009

                                       No. 08-40271                    Charles R. Fulbruge III
                                                                               Clerk

RICHARD DELANEY KYLES

                                                   Plaintiff – Appellant
v.

GERALD GARRETT; TROY FOX

                                                   Defendants – Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:03-CV-53


Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:*
       In 2003, Texas prisoner Richard Delaney Kyles filed an action under 42
U.S.C. § 1983, alleging that a change in Texas’s parole law, as applied to him,
violated the Ex Post Facto Clause of the U.S. Constitution. The district court
dismissed Kyles’s claim as frivolous and for failure to state a claim. That
dismissal was vacated by a panel of this court and the case remanded. On
remand, the district court held that Kyles’s claim was barred by Heck v.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-40271

Humphrey, 512 U.S. 477 (1994). For the following reasons, we vacate and remand.
                           FACTS AND PROCEEDINGS
       In 1976, Richard Delaney Kyles was convicted of capital murder and
sentenced to life imprisonment. At the time of his incarceration, Article 42.12
of the Texas Code of Criminal Procedure governed his parole process. Under this
provision, parole was granted if the majority of a panel, composed of three parole
board members, voted in favor of release. T EX. C ODE C RIM. P ROC. A NN. art.
42.12, § 14A(i) (1979). In 1995, Texas enacted a new law requiring all members
of the eighteen-member parole board to vote on capital felons’ parole requests.
1995 Tex. Sess. Law Serv. ch. 318, § 83 (codified as amended at T EX. G OV’T C ODE
A NN. § 508.046 (Vernon 2004 & Supp. 2009)). Under the new law, for an inmate
to be released on parole, at least two-thirds of the board must vote in favor of
release. Effective January 11, 2004, Texas reduced the size of the parole board
from eighteen members to seven. 2003 Tex. Sess. Law Serv. 3d Called Sess. ch.
3, § 11.03 (codified at T EX. G OV’T C ODE A NN. § 508.031 (Vernon 2004)).
       In 1995, a three-member panel denied Kyles parole.                     The new law
requiring a full board vote then went into effect. In 1998, 1999, 2002, 2004, and
2007, Kyles was denied parole.           The highest number of favorable votes he
received in any one hearing was six out of a possible eighteen, in 2004.
       Kyles filed a pro se § 1983 complaint in 2003. He sought injunctive relief
ordering the parole board to apply the preexisting three-member panel review
process to any future parole hearings. He argued that the change in Texas’s
parole process was a violation of the Ex Post Facto Clause of the U.S.
Constitution.1 A magistrate judge issued a report and recommendation (“R&R”)
recommending dismissal of the complaint with prejudice as frivolous and for
failure to state a claim. The district court adopted the R&R in its entirety and

       1
        He also alleged violations of the Equal Protection Clause. The district court’s
dismissal of those claims was affirmed by this court and is not at issue in the present appeal.

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dismissed Kyles’s claim with prejudice. In March 2007, a panel of this court held
that the dismissal was erroneous and remanded the claim for further
proceedings. Kyles v. Garrett, 222 F. App’x 427, 430 (5th Cir. 2007) (unpublished
per curiam).
      On remand, the defendants filed a motion for summary judgment. The
magistrate judge issued an R&R recommending dismissal of Kyles’s complaint
with prejudice under the doctrines of res judicata and collateral estoppel and for
failure to state a claim. Kyles filed a written objection to this recommendation.
In February 2008, after de novo review of the R&R, Kyles’s objection, and the
entire record, the district judge issued a memorandum order. She accepted the
R&R’s factual findings in their entirety.       She further found that Kyles’s
complaint was “subject to dismissal for reasons other than those stated by the
Magistrate Judge in the Report and Recommendation.” Rather than dismiss on
the grounds recommended by the magistrate judge, the district judge held
Kyles’s claim “barred by the doctrine of Heck v. Humphrey . . . because the
granting of relief would necessarily imply the invalidity of the parole decisions
plaintiff challenges in this civil rights action.” Accordingly, the district court
dismissed Kyles’s complaint without prejudice because his claim had not yet
accrued under Heck. A final judgment was entered the same day.
                            STANDARD OF REVIEW
      “We review a district court’s grant of summary judgment de novo.”
Goodman v. Harris County, 571 F.3d 388, 393 (5th Cir. 2009). “Summary
judgment is appropriate ‘if the pleadings, the discovery and disclosure materials
on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to judgment as a matter of law.’” Id. (quoting
F ED. R. C IV. P. 56(c)).   “We consider the evidence in a light most favorable
to . . . the non-movant, but [he] must point to evidence showing that there is a



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genuine fact issue for trial to survive summary judgment.”          Id. (quotation
omitted).
                                 DISCUSSION
A.    Scope of Review
      Although Kyles raised three points of error in his opening brief, he did so
under the erroneous impression that the district court adopted the magistrate
judge’s R&R in its entirety and dismissed on res judicata, collateral estoppel,
and failure to state a claim grounds, in addition to the Heck ground. To the
contrary, the district judge specifically stated that her dismissal was “for reasons
other than those stated” by the R&R, which was adopted “as amended.”
      As the Supreme Court has stated: “The magistrate may do no more than
propose a recommendation . . . . The district judge is free to follow it or wholly
to ignore it, or, if he is not satisfied, he may conduct the review in whole or in
part anew. The authority—and the responsibility—to make an informed, final
determination, we emphasize, remains with the judge.” Mathews v. Weber, 423
U.S. 261, 270-71 (1976). Further, when a dispositive matter is referred to a
magistrate judge for report and recommendation, “the courts of appeals lack
power to review the magistrate judge’s recommendation; appeal lies only upon
entry of a district court judgment.” 15A C HARLES A LAN W RIGHT ET AL., F EDERAL
P RACTICE AND P ROCEDURE § 3901.1, at 30 (2d ed. 1992). “Should the district
judge materially alter the magistrate judge’s recommendation, it is unavoidable
that appellate review is fully available as to any changes made by the district
judge.” 12 id. § 3070.1, at 372 (2d ed. 1997).
      Kyles improperly seeks to appeal the magistrate judge’s recommended
dispositions on grounds of res judicata, collateral estoppel, and failure to state
a claim. Those recommendations formed no part of the ruling underlying the
district court’s judgment. Accordingly, this court limits its appellate review to
the Heck issue actually decided by the district judge.

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B.    Heck v. Humphrey
      The district court held that Kyles’s claim was barred by “the doctrine of
Heck” because granting relief would imply the invalidity of the prior parole
decisions. In Heck, the Court held that
            in order to recover dam ages for allegedly
            unconstitutional conviction or imprisonment, or for
            other harm caused by actions whose unlawfulness
            would render a conviction or sentence invalid, a § 1983
            plaintiff must 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.
512 U.S. at 486-87 (footnote omitted).
      In Wilkinson v. Dotson, the Court reviewed the cases leading up to and
following Heck. 544 U.S. 74, 78-82 (2005). It clarified that “a state prisoner’s
§ 1983 action is barred (absent prior invalidation)—no matter the relief 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.” Id. at 81-82. The Dotson Court emphasized that habeas corpus was
the exclusive remedy for state prisoners who “seek to invalidate the duration of
their confinement—either directly through an injunction compelling speedier
release or indirectly through a judicial determination that necessarily implies
the unlawfulness of the State’s custody.” Id. at 81. Thus, § 1983 relief “remains
available for procedural challenges where success in the action would not
necessarily spell immediate or speedier release for the prisoner.” Id.
      In our prior opinion, to which we defer as law of the case, we stated: “Kyles
does not seek to invalidate prior parole proceedings or to obtain immediate
release; rather, he seeks only to have the former parole scheme apply to his


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future parole hearings.” Kyles, 222 F. App’x at 429. During oral argument,
Kyles’s court-appointed counsel confirmed that his desired relief is consonant
with this court’s understanding. Counsel reiterated the position taken in Kyles’s
briefs: that he seeks prospective injunctive relief, and cites the prior parole
decisions as favorable evidence supporting the merits of his ex post facto claim.2
       Indeed, Kyles’s action bears a striking resemblance to the § 1983 lawsuit
in Dotson. An Ohio prisoner challenged on ex post facto grounds the state’s
retroactive application of new parole guidelines for parole suitability. The Court
held that the claim was not barred, by Heck or otherwise. It held that “the
connection between the constitutionality of the prisoner[’s] parole proceedings
and release from confinement is too tenuous” to foreclose relief on the basis of
Heck. 544 U.S. at 78. Kyles seeks relief that will “render invalid the state
procedures used to deny . . . parole suitability” but does not seek “an injunction
ordering his immediate or speedier release into the community.” Id. at 82. Like
the Dotson plaintiff, success for Kyles “means at most a new parole hearing at
which [Texas] parole authorities may, in their discretion, decline to shorten his
prison term.” Id. Under Dotson, Kyles is not precluded by Heck from litigating
his § 1983 claim.




       2
           In addition to injunctive relief, Kyles’s amended complaint after remand sought
declaratory relief that the prior parole decisions violated his constitutional rights. Texas
argues that granting such relief would require invalidation of those decisions and that the
district court’s dismissal was therefore appropriate. In Dotson, the plaintiff sought a similar
declaration that his constitutional rights were violated by retroactive application of new parole
guidelines. 544 U.S. at 77. The Supreme Court declined to bar declaratory relief. Even if
declaratory relief were unavailable to Kyles, his claim for prospective injunctive relief would
remain valid. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (recognizing a claim for a
prospective injunction as cognizable under § 1983, even when a request for declaratory relief
supporting a damages claim was not cognizable).
        In any event, Kyles seeks declaratory relief not to invalidate the results of the parole
decisions, but to substantiate his position that the change in parole law violated the Ex Post
Facto Clause.

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      Though Kyles cited Dotson in his summary judgment opposition brief, the
district court’s memorandum order does not appear to have considered its
applicability. Because Kyles encounters no bar to proceeding in his § 1983 action
under Heck v. Humphrey the district court’s dismissal of his claim on Heck
grounds was erroneous and the State was not entitled to summary judgment on
that basis.
                                CONCLUSION
      For the foregoing reasons, the judgment of the district court is VACATED
and this case is REMANDED for further proceedings consistent with this
opinion. On remand, the district court may elect to consider any of the State’s
arguments not addressed in its memorandum order and hence not reviewed by
this court.




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