UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-40370 Summary Calendar

HAROLD R. HAYES, II,

Plaintiff-Appellee,

versus

MARK A. DIAZ; ET AL., Defendants,

MARK A. DIAZ; GARY JOHNSON, Warden; SABAS ENCINIA, Jr.,

Defendants-Appellants. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Texas (C-98-CV-325) _________________________________________________________________ December 27, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

This interlocutory appeal by defendant prison officials

concerns the denial of their motion for summary judgment, based on

claimed qualified immunity and seeking the dismissal of Harold

Hayes’

claim of denial of access to the courts

(the claim).

Hayes was found to be illiterate. After he filed his pro se

§ 1983 action, an attorney was appointed for him and filed an

amended complaint. Hayes is represented by counsel on appeal.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Defendants claim entitlement to qualified immunity for the

following reasons: 1) Hayes’ claim is barred by claim preclusion

(res judicata) because he raised it in objections to the magistrate

judge’s recommendation to dismiss his earlier

habeas petition as time-barred and in his request for an ensuing

certificate of appealability from this court; 2) the claim is

barred by Heck v. Humphrey,

(1994), because a

favorable ruling on the claim would mean Hayes’ underlying habeas

claims had merit; 3) Hayes’ § 1983 allegations did not establish

the claim because his § 2254 claims were frivolous; 4) Hayes’ claim

is frivolous given that he filed other pleadings during the one-

year limitations period; and 5) Defendants were not unreasonable in

denying Hayes’ numerous requests for a “legal visit”.

While we have jurisdiction to review the denial of summary

judgment claimed pursuant to qualified immunity, see Lukan v. N.

Forest ISD,

(5th Cir. 1999), cert. denied

(2000), claim preclusion is not inextricably intertwined

with our analysis of Defendants’ qualified immunity claims, and we

have no jurisdiction to consider those arguments in this

interlocutory appeal. See, e.g., Woods v. Smith,

,

1166 n.29 (5th Cir. 1995), cert. denied

(1996).

Because we determine whether a plaintiff has asserted a

violation of a constitutional right as part of our qualified

immunity analysis, we can address Defendants’ Heck contention. See

Wells v. Bonner,

(5th Cir. 1995). The Supreme Court

in Lewis v. Casey,

, 353 n.3 (1996), indicated that the

2 underlying claims in an access-to-the-courts action should not be

frivolous; on the other hand, the Court did not suggest that the

underlying claims had to be meritorious. We find no authority to

extend Heck to a case such as this one, where the plaintiff is not

challenging his conviction and incarceration but instead the denial

of his opportunity to challenge that conviction.

There are genuine issues of material fact regarding whether

Hayes’ underlying habeas claims were frivolous. The fact that

Hayes filed other pleadings during the limitations period relevant

to the instant case does not, as a matter of law, automatically

negate his claim of denial of access to the courts; and Defendants

seek to challenge issues of fact over which we have no

jurisdiction. See Jacobs v. West Feliciana Sheriff’s Dep’t,

, 392 (5th Cir. 2000). Similarly, whether Defendants acted

reasonably in denying Hayes’ requests for a “legal visit” involves

the genuineness of material facts.

AFFIRMED

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