United States Court of Appeals
                                                                                         Fifth Circuit
                                                                                       F I L E D
                       IN THE UNITED STATES COURT OF APPEALS
                                                                                       October 25, 2006
                                FOR THE FIFTH CIRCUIT
                               _________________________
                                                                                   Charles R. Fulbruge III
                                      No. 06-70047                                         Clerk
                               _________________________

GREGORY LYNN SUMMERS,
                                                                                 Plaintiff-Appellant,
versus

JAMES EIDSON,
Taylor County District Attorney,

BRUCE ISAACKS,
Denton County Criminal District Attorney,

GEORGETTE ODEN,
Assistant Attorney General,

JAMES FRAZIER, Texas Department of Criminal Justice,

RISSIE OWENS,
Presiding Officer, Texas Board of Pardons and Parole,

BRAD LIVINGSTON,
Executive Director, Texas Department of Criminal Justice,
                                                                      Defendants-Appellees.
                  __________________________________________________
                         Appeal from the United States District Court
                              for the Southern District of Texas
                                     (No. 4:06-CV-3362)
                  __________________________________________________

Before JONES, Chief Judge, and BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

         Plaintiff Gregory Lynn Summers (“Summers”), a death-sentenced prisoner, appeals the

district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint seeking “a declaratory


*
 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 R. 47.5, the court has determined that this opinion should not be published and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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judgment that Defendants must disclose the Brady evidence they currently refuse to release and to

compel release of that evidence” or, in the alternative, “an injunction from this Court preventing

Defendants from depriving Summers of his life without due process of law.” Summers also moves

this court to enjoin defendants from executing Summers prior to resolution of his § 1983 suit. The

district court’s dismissal of Summers’s § 1983 complaint is AFFIRMED and the motion to enjoin

is DENIED AS MOOT.

                                I. FACTS AND PROCEEDINGS

       Summers was convicted of capital murder and sentenced to death in August 1991. Summers

has failed to gain relief through direct appeal as well as state and federal habeas corpus proceedings.

Summers’s execution is set for 6:00 p.m. today, October 25, 2006. Summers previously filed a

separate § 1983 action in state court that was removed to federal court in the Western District of

Texas. This afternoon this court affirmed the dismissal of that action. This morning Summers filed

the instant § 1983 action in federal court in the Southern District of Texas seeking a declaratory

judgment or, in the alternative, an injunction. The district court dismissed this complaint sua sponte.

Summers appealed.

                                      II. STANDARD OF REVIEW

       This court reviews a district court’s sua sponte decision to dismiss a complaint de novo.

White v. Johnson, 

, 573 (5th Cir. 2005).

                                            III. DISCUSSION

       “[A] § 1983 challenge is a proper remedy for a state prisoner who is making a constitutional

challenge to the conditions of his prison life, but not to the fact or length of his custody.” Preiser

v. Rodriguez, 

, 499 (1973). “[W]hen a state prisoner is challenging the very fact or



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duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled

to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ

of habeas corpus.” 

       If, however, “the conviction or sentence has been reversed on direct appeal, expunged by

executive order, declared invalid by a state tribunal authorized to make such determinations, or

called into question by a federal court’s issuance of a writ of habeas corpus [under] 28 U.S.C. §

2254,” this court may consider a § 1983 claim relating to the conviction or sentence. Heck v.

Humphrey, 

, 486–87 (1994). Use of § 1983 to challenge a conviction outside of these

circumstances, which are not present here, is prohibited to the extent that a judgment in favor of the

plaintiff would “necessarily imply the invalidity of his conviction or sentence.” 

–87. This rule applies to injunctive as well as monetary relief. See Kutzner v. Montgomery

County, 

, 340–41 (5th Cir. 2002).

       Summers argues that the relief sought, namely that this court require that William

Spaulding’s parole records be turned over to Summers, would not necessarily imply the invalidity

of his conviction or sentence because a habeas court would then have to determine whether the

failure to disclose these records constituted a Brady violation and therefore whether or not to

overturn his conviction. Kutzner, however, forecloses this 

–41.

       In Kutzner, a death-sentenced state prisoner sought to compel “the State to produce

biological evidence for DNA testing.” 

Kutzner argued that the officials “refused to

release biological evidence introduced at his trial for DNA testing and thereby ‘prevented Plaintiff

from gaining access to exculpatory evidence which could exclude him as a perpetrator.’” 

This court held that “[p]lainly, the allegations seek to undermine Kutzner’s



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conviction or the consequences flowing therefrom, such as the availability of an executive clemency

petition.” 

therefore held that the complaint was not a valid use of § 1983 because

“claims seeking to attack the fact or duration of confinement, as well as claims which are ‘so

intertwined’ with attacks on confinement that their success would ‘necessarily imply’ revocation

or modification of confinement, must be brought as habeas petitions and not under § 1983.” 

        Summers’s argument, that the injunction sought would not necessarily imply the invalidity

of his conviction or sentence because the withholding of the documents he seeks might not

constitute a Brady violation could just as well be applied to the facts in Kutzner.

                                        IV. CONCLUSION

        For the reasons stated above, the district court’s sua sponte dismissal of Summers’s § 1983

complaint is AFFIRMED. The motion to enjoin the defendants from executing Summers prior to

resolution of his § 1983 suit is DENIED AS MOOT.




1
 Summers argues that reliance on “Kutzner is also misplaced” because Kutzner relied on Martinez
v. Texas Court of Criminal Appeals, 

(5th Cir. 2002). Summers argues that “in the
wake of Nelson v. Campbell, 

(2004) . . . Martinez is no longer good law.” This is not
correct. While Nelson did abrogate Martinez to the extent that Martinez held that § 1983 claims
categorically could not be used to challenge the method of lethal injection, it did not overrule the
case in its entirety or the portion relied on by this court in Kutzner. See Harris v. Johnson, 

, 416 (5th Cir. 2004) (stating that the Fifth Circuit “interpreted [Nelson] as overturning
Martinez’s categorical bar on § 1983 method-of execution suits”).


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