36 F3d 1093 Miller v. L Jackson W a Y F

36 F.3d 1093

Mark Andrew MILLER, Plaintiff Appellant,
Clarence L. JACKSON, Jr., Chairman, Virginia Parole Board;
Lewis W. Hurst, Vice-Chairman; John A. Brown, Member; Gail
Y. Browne, Member; Jacqueline F. Fraser, Member, in their
individual and official capacities, Defendants Appellees.

No. 94-6395.

United States Court of Appeals, Fourth Circuit.

Submitted: September 13, 1994
Decided: September 23, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Senior District Judge. (CA-94-254-AM)

Mark Andrew Miller, Appellant Pro Se.



Before HALL and MURNAGHAN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.


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Mark A. Miller, a Virginia inmate, appeals from the district court's order dismissing, without prejudice, his 42 U.S.C. Sec. 1983 (1988) claim in which he challenged the procedures involved in the Defendant's decision to deny his parole. The district court construed Miller's complaint as a petition for writ of habeas corpus, 28 U.S.C. Sec. 2254 (1988), and dismissed without prejudice for failure to exhaust his state court remedies. See Preiser v. Rodriguez, 411 U.S. 475 (1975); see also Heck v. Humphrey, 62 U.S.L.W. 4594 (U.S.1994). However, because Miller's claims challenged not the right to parole, but the right to procedural due process in the consideration of parole, his complaint was properly brought in a Sec. 1983 action. See Roller v. Cavanaugh, 984 F.2d 120, 122 (4th Cir.1993). Nevertheless, our review of the record reveals that Miller's claims are meritless. Therefore, we affirm the district court's order as modified to show that the dismissal is with prejudice. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid in the decisional process.