     Case: 08-50846     Document: 00511090441          Page: 1    Date Filed: 04/23/2010




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

                                                  FILED
                                                                            April 23, 2010
                                     No. 08-50846
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

GARY JON HUNTER,

                                                   Plaintiff–Appellant

v.

RISSIE OWENS,

                                                   Defendant–Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:06-CV-270


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Gary Jon Hunter, Texas prisoner # 511806, appeals the district court’s
dismissal of his complaint in this 42 U.S.C. § 1983 action for failure to state a
claim upon which relief may be granted pursuant to F ED. R. C IV. P. 12(b)(6).
Hunter argues that the retroactive application of T EX . G OV ’T C ODE A NN.
§ 508.046 to his case violates the Ex Post Facto Clause because it creates a
substantial risk of increased punishment. Hunter seeks prospective injunctive



        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 08-50846       Document: 00511090441 Page: 2             Date Filed: 04/23/2010
                                    No. 08-50846

relief placing him under the prior parole statute requiring a three-member panel
and requiring Texas to grant him a special parole review.1
       The district court dismissed Hunter’s complaint for failure to state a claim,
holding that Hunter’s claim was barred by Heck v. Humphrey, 512 U.S. 477
(1994), because it determined that granting relief would necessarily imply the
invalidity of the prior parole decision. A district court’s grant of a motion to
dismiss for failure to state a claim under F ED. R. C IV. P. 12(b)(6) is subject to de
novo review. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th
Cir. 2007). To avoid dismissal for failure to state a claim, a plaintiff’s complaint
must plead enough facts to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The factual allegations must “raise a right
to relief above the speculative level.” Bell Atlantic, 550 U.S. at 555.
       In Wallace v. Quarterman, 516 F.3d 351, 354-56 (5th Cir. 2008), we held
generally that the new Texas parole statute did not facially violate the Ex Post
Facto Clause because it changed only the discretionary determination and not
eligibility for parole. Therefore, Hunter’s facial challenge to T EX. G OV’T C ODE
A NN. § 508.046 is foreclosed by Wallace.
       Hunter has shown that the district court erred in dismissing his “as
applied” claim as barred by Heck. In Wilkinson v. Dotson, 544 U.S. 74, 81-82
(2005), the Supreme Court held that § 1983 relief “remains available for
procedural challenges where success in the action would not necessarily spell
immediate or speedier release for the prisoner.” In Kyles v. Garrett, No. 08-
40271, 2009 WL 4250078 (5th Cir. Nov. 30, 2009), we held that a state prisoner
was not precluded by Heck from bringing a § 1983 action challenging the
retroactive application of T EX. G OV’T C ODE A NN. § 508.046 as a violation of the


       1
       Hunter does not identify any error in the district court’s dismissal of his due process
and equal protection claims. Therefore, he has abandoned these issues on appeal. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987).

                                              2
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                                 No. 08-50846

Ex Post Facto Clause. We found that success for Kyles meant “‘at most a new
parole hearing at which [Texas] parole authorities may, in their discretion,
decline to shorten his prison term.’” Id. at *3 (quoting Dotson, 544 U.S. at 82).
Under Dotson and Kyles, Hunter is not precluded by Heck from bringing a § 1983
claim challenging the retroactive application of T EX. G OV’T C ODE A NN. § 508.046
as a violation of the Ex Post Facto Clause. See Dotson, 544 U.S. at 82; see also
Kyles, 2009 WL 4250078 at **3-4. Hunter seeks only prospective injunctive
relief requiring that the Parole Board apply the prior parole law of review by a
three-member panel to his future parole hearings and requiring Texas to grant
him a special parole review. Because the parole board has the discretion to deny
parole, the relief Hunter seeks would not necessarily require immediate or
speedier release for Hunter. Therefore, the district court erred in holding that
Hunter’s claim was precluded by Heck. See Dotson, 544 U.S. at 82; see also
Kyles, 2009 WL 4250078 at **3-4. Accordingly, we vacate the district court’s
judgment as to Hunter’s ex post facto claim and remand the case for further
proceedings.
      Consistent with this opinion, we vacate the portion of the district court’s
order declining to exercise supplemental jurisdiction over Hunter’s state law
claims. On remand, the district court should determine whether it should
exercise such jurisdiction. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343,
350 (1988).
      AFFIRMED IN PART; VACATED IN PART; REMANDED.




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