     Case: 13-10408      Document: 00512831373         Page: 1    Date Filed: 11/10/2014




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

                                                                               FILED
                                                                         November 10, 2014
                                      No. 13-10408
                                                                            Lyle W. Cayce
                                                                                 Clerk
STEPHEN C. WALKER, also known as Stephen Clayton Walker,

                Plaintiff - Appellant

v.

MICHAEL D. SAVERS; JIMMY CORLEY; GRANDVILLE SANDERS; BRAD
LIVINGSTON, in His Official Capacity as the Executive Director of the Texas
Department of Criminal Justice; SHAWN WATSON; RUSSELL BOCKMAN,

                Defendants - Appellees




                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:11-CV-94


Before JOLLY and JONES, Circuit Judges, and AFRICK*, District Judge.
PER CURIAM:*
       Stephen C. Walker, Texas prisoner # 1417300, assigns a handful of
errors in this appeal, but the only one we need reach relates to the district
court’s treatment of his objections to the magistrate judge’s report and
recommendation. On March 8, 2013, a magistrate judge recommended that



       * District Judge of the Eastern District of Louisiana, sitting by designation.
       **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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10408
Walker’s claims be dismissed on summary judgment and, on March 26, the
district court adopted that recommendation.        Walker asserts that, in the
meantime, however, on March 22, he mailed to the district court his objections
to the magistrate judge’s report.       When the district court received the
objections on March 29, it treated them as a motion for a new trial under
Federal Rule of Civil Procedure 59, which it promptly denied. Walker argues
that the district court erred in treating his objections as a Rule 59 motion. We
agree, assuming, as we do for our purposes today, that Walker indeed mailed
his objections on March 22, and so we vacate and remand.
      If a party timely objects to the magistrate judge’s report and
recommendations, the district court must “make a de novo determination of
those portions of the report or specified . . . recommendations to which objection
is made.” 28 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3). Thus, if
Walker’s objections were timely, we must determine “whether the district
judge . . . engaged in de novo review . . . . If he did not, we must remand.”
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989) (per curiam).
      Walker’s objections may have been timely. He had fourteen days to file
them after entry of the magistrate judge’s report and recommendation.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b)(2). Under the “prison mailbox rule,” “a pro
se prisoner’s written objections to a magistrate’s report and recommendations
must be deemed filed and served at the moment they are forwarded to prison
officials for delivery to the district court.” Thompson v. Rasberry, 993 F.2d 513,
515 (5th Cir. 1993). According to Walker (and to his certificate of service),
Walker placed his objections in the prison’s mail system on March 22, the
fourteenth day after the magistrate judge’s report and recommendation was
entered on March 8. See Fed. R. Civ. P. 6(a) (explaining how to compute time
for procedural purposes). The defendants dispute that date, noting that the
envelope containing the objections was postmarked March 26. But if Walker
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                                  No. 13-10408
is correct that he mailed the objections on March 22, then his objections were
timely “filed and served” under Thompson.
      The question, then, is whether the district court “ma[de] a de novo
determination of” the objected-to portions of the magistrate judge’s report.
§ 636(b)(1)(C). The district court did not, but instead explicitly construed
Walker’s objections as a Rule 59 motion. It therefore noted that granting the
motion would be “extraordinary,” and stated that it would do so only if the
motion “clearly establish[ed] either a manifest error of law or fact or . . .
present[ed] newly discovered evidence.”       This review does not satisfy the
independent “determination based upon the record . . . unconstrained by the
findings and conclusions of the magistrate” that de novo review entails. See
Wilson, 864 F.2d at 1222.
      We vacate the district court’s dismissal. On remand, the district court
should determine whether Walker’s objections were timely filed—and they
indeed were if they were mailed on or before March 22. If they were timely
filed, the district court should review the objected-to portions of the magistrate
judge’s report de novo. To the extent Walker supports his objections with new
evidence not presented to the magistrate judge, the district court has discretion
as to whether to consider it. See § 636(b)(1) (“The judge may . . . receive further
evidence . . . .” (emphasis added)); Fed. R. Civ. P. 72(b) (similar).        That
discretion should be exercised in view of the factors set out by our decision in
Performance Autoplex II Ltd. v. Mid-Continent Cas. Co., 322 F.3d 847, 862 (5th
Cir. 2003).
      We make one additional observation about the law to be applied on
remand. The magistrate judge rejected Walker’s retaliation claim based on his
disciplinary charge for possession of contraband because Walker requested the
return of the contraband typewriter as part of his relief. According to the
magistrate judge, by asking the court to return the typewriter, Walker has
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asked the court to invalidate the prison’s disciplinary charge, and this the court
cannot do (absent prior reversal or expungement of the charge) under Heck v.
Humphrey, 512 U.S. 477 (1994). But because a prisoner need not demonstrate
a favorable outcome of his disciplinary case in order to pursue a related
retaliation claim, Heck does not bar the retaliation claim. See Muse v. Sheriff’s
Dep’t, Ouachita Parish, 405 F. App’x 872, 873 (5th Cir. 2010) (citing Woods v.
Smith, 60 F.3d 1161, 1164–66 (5th Cir. 1995)); Williams v. Hinyard, 395 F.
App’x 124, 125 (5th Cir. 2010); Mahogany v. Rogers, 293 F. App’x 259, 260 (5th
Cir. 2008); Lynn v. Cockrell, 86 F. App’x 700, 701 (5th Cir. 2004). Insofar as
Walker seeks damages for this allegedly retaliatory charge, the Heck doctrine
does not stand in the way.
                         VACATED and REMANDED for further proceedings.




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