Ballard v. State of Texas

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 30, 2002
• Docket: 02-50201
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50201 Summary Calendar

DAVID BRYAN BALLARD,

Plaintiff-Appellant,

versus

STATE OF TEXAS, Institutional Division, Huntsville, Texas, et al,

Defendant-Appellee.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-783-JN -------------------- August 30, 2002 Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

David Bryan Ballard appeals the dismissal of his civil rights

suit against the Huntsville Unit of the Texas Department of

Criminal Justice. Ballard argues that his sentence was supposed to

end in June 25, 1998, and that he continued on parole until

November 1999. He states, as he did in the district court, that,

at a hearing in Amarillo, Texas, a representative from the

Huntsville Unit admitted that Ballard’s sentence had ended.

Ballard states that he was released at that time.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 02-50201 -2-

Ballard’s allegation, which alludes to a state tribunal

possibly declaring his sentence beyond June 1998 invalid, could

state a valid 42 U.S.C. § 1983 claim not barred by Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994). Also, though the Texas

Department of Criminal Justice is protected by the Eleventh

Amendment from suits for money damages, see Talib v. Gilley, 138

F.3d 211, 213 (5th Cir. 1998), a pro se plaintiff who has named the

wrong defendant should be permitted to amend his pleadings when it

is clear from his complaint that there is a potential ground for

relief. Gallegos v. La. Code of Criminal Procedures Art. 658, 858

F.2d 1091, 1092 (5th Cir. 1988).

It is not clear from the current record that Ballard’s claim

is frivolous. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994).

The district court’s dismissal of Ballard’s complaint is VACATED

and the case is REMANDED for further proceedings.