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REVISED, October 13, 2000
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 99-11092
___________________________
TOMMY RANDELL,
Plaintiff-Appellant,
VERSUS
GARY L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division; MELINDA BOZARTH, Director, Texas Board of
Pardons and Paroles; JOHN DOE, I; JOHN DOE, II,
Defendants-Appellees.
___________________________________________________
Appeal from the United States District Court
For the Northern District of Texas
___________________________________________________
September 26, 2000
Before WOOD*, DAVIS, and BARKSDALE, Circuit Judges.
PER CURIAM:
The district court held that Tommy Randell's 42 U.S.C. § 1983
complaint for damages was frivolous and therefore dismissed his
complaint. Because we determine that the complaint fails to state
a cause of action upon which relief may be granted, we affirm.
I.
Randell was arrested and charged with driving while
*Circuit Judge of the Seventh Circuit, sitting by designation.

intoxicated. He alleges that he was incarcerated from September
27, 1996 until June 25, 1997 pursuant to a warrant from the Texas
Board of Pardons and Paroles, but was not given credit for this
time and therefore had to serve the time over again.
By June 18, 1999, the date on which he commenced this
litigation, Randell was no longer in custody for the term of
confinement in dispute and therefore was ineligible for federal
habeas relief.2 He therefore pursued relief in forma pauperis
under § 1983, requesting compensatory damages of $1000 for each day
he had "served over his sentence." The district court dismissed
Randell's § 1983 complaint as frivolous and Randell appealed. We
affirm the district court on the grounds that Randell's complaint
fails to state a claim upon which relief may be granted. FED. R.
CIV. P. 12(b)(6).
II.
Randell points out, pro se, that he is no longer in custody
and thus can not file a habeas petition. Randell therefore asserts
that he does not need to prove that the underlying proceedings upon
which his conviction was based have been terminated in his favor,
since he can no longer seek habeas relief. However, in Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994), the Court unequivocally
stated:
We hold that, in order to recover damages for allegedly
2See 28 U.S.C. § 2254(a) (stating that "a district court shall entertain
an application for a writ of habeas corpus in behalf of a person in custody
pursuant to the judgment of a State court only on the ground that he is in
custody in violation of the Constitution or laws or treaties of the United
States.").
2

unconstitutional conviction or imprisonment, or for other
harm caused by actions whose unlawfulness would render a
conviction or sentence invalid, [footnote omitted] 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, 28
U.S.C. § 2254.
Therefore, the Court unequivocally held that unless an authorized
tribunal or executive body has overturned or otherwise invalidated
the plaintiff's conviction, his claim "is not cognizable under
[section] 1983."3 Because Randell is seeking damages pursuant to
§ 1983 for unconstitutional imprisonment and has not satisfied the
favorable termination requirement of Heck, he is barred from any
recovery and fails to state a claim upon which relief may be
granted.
Based on dicta from concurring and dissenting opinions in
Spencer v. Kemna, 523 U.S. 1 (1998), three circuits4 have concluded
that the Supreme Court - if presented with the question - would
relax Heck's universal favorable termination requirement for
plaintiffs who have no procedural vehicle to challenge their
conviction. Randell has not shown that such a procedural vehicle
is lacking; he speaks only of inability to obtain habeas relief.
In the alternative, we decline to announce for the Supreme
Court that it has overruled one of its decisions.
3Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 2372 (1994).
4See Jenkins v. Haubert, 179 F.3d 19, 26 (2d Cir. 1999); Shamaeizadeh v.
Cunigan, 182 F.3d 391, 396 n.3 (6th Cir. 1999); and Carr v. O'Leary, 167 F.3d
1124, 1127 (7th Cir. 1999).
3

We agree with the First Circuit,5 which stated:
We are mindful that dicta from concurring and dissenting
opinions in a recently decided case, Spencer v. Kemna,
523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), may
cast doubt upon the universality of Heck's "favorable
termination" requirement. See id.at ----, 118 S.Ct. at
989 (Souter, J., concurring); id. at ----, 118 S.Ct. at
990 (Ginsberg, J., concurring); id. at n.8, 118 S.Ct. at
992 n.8 (Stevens, J., dissenting). The Court, however,
has admonished the lower federal courts to follow its
directly applicable precedent, even if that precedent
appears weakened by pronouncements in its subsequent
decisions, and to leave to the Court "the prerogative of
overruling its own decisions." Agostini v. Felton, 521
U.S. 203, ----, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391
(1997); see also Rodriguez de Quijas v. Shearson/American
Express, Inc.,490 U.S. 477, 484, 109 S.Ct. 1917, 104
L.Ed.2d 526 (1989). We obey this admonition.
Figueroa v. Rivera, 147 F.3d 77, 81 n.3 (1st Cir. 1998).
III.
For the above reasons, the judgment is AFFIRMED.
5The Ninth Circuit also follows this course. See Cabrera v. City of
Huntington Park, 159 F.3d 374, 380 n.6 (9th Cir. 1998).
4