Opinion · Court of Appeals for the Tenth Circuit
Scott R. Crow v. Daniel W. Penry
102 F.3d 1086
- Type
- Opinion
- Court
- Court of Appeals for the Tenth Circuit
- Jurisdiction
- Federal
- Date
- 1996-12-17
- Topic
- general
explaining that Heck “applies to proceedings that call into question the fact or duration of parole or probation” | holding Heck “applies to proceedings that call into question the fact or duration of parole or probation” | finding the plaintiff's civil claim for damages implied the invalidity of his parole revocation and subsequent incarceration and noting that Heck does not permit this | applying Heck to bar § 1983 claim where challenge would imply the invalidity of plaintiff’s parole revocation | dismissing pursuant to Heck claims that a probation officer falsely testified at the plaintiff’s probation revocation hearing | applying Heck to claim 26 alleging invalidity of a parole revocation | applying Heck to claim 15 alleging invalidity of a parole revocation | dismissing pursuant to Heck Fourth and Fifth Amendment claims alleging that a probation officer and others conspired to have search and arrest warrants issued where the only relief sought was for damages resulting from the arrest and related incarceration | “[Heck ] applies to proceedings that call into question the fact or duration of parole or probation.” | “[Heck] applies to proceedings that call into question the fact or duration of parole or probation.” | Heck “applies to proceedings that call into question the fact or duration of parole or probation.” (citation omitted) | “[Heck] applies to proceedings that call into question the fact or duration of parole or 5 probation.” | “It applies to proceedings that call into question the fact or duration of parole or 3 probation.” | “[Heck] applies to proceedings that call into question the fact or duration of parole or probation.” | Heck applies to proceedings that call into question the fact or duration of parole or probation | § 1983 claims challenging revocation of probation precluded under Heck until revocation is invalidated | applying Heck to a probation revocation proceeding | “Heck applies to Bivens actions.” | “Heck applies to Bivens actions.”
Citator
- Cited by
- 46 opinions
Kathleen L. Torres, Assistant U.S. Attorney, Denver, CO, (Henry L. Solano, United States Attorney, and William G. Pharo, Assistant U.S. Attorney, Denver, CO, with her on the brief), for Defendants-Appellants.
(D.C. No. 94-CB-504)
[2] Crow brought this suit against his probation officer, the Probation Department of the District Court, and the United States Parole Commission. He contended that there had been violation of his constitutional rights against unreasonable searches or seizures and due process of law. He sought damages for his arrest as a parole violator and his subsequent incarceration, the revocation of his parole and the ensuing additional period of incarceration. He asserted a Section(s) 1983 Bivens claim and a pendant state claim for common law abuse of process. He alleged that his probation officer (and a predecessor officer) had failed to advise him, or had misadvised him, concerning whether, as a person convicted of felony in Mexico, he was forbidden to possess firearms. He contended that the defendants had made false statements in connection with his parole violation warrant and a search warrant of his premises that had turned up weapons.
[3] In a motion to dismiss hearing counsel for Crow indicated his intention to file an amended complaint under the Federal Tort Claims Act to substitute for the pendant state claim. No amendment was ever filed. The district court dismissed the claim against the Probation Department and Parole Commission and the claim against the probation officer in his official capacity on sovereign immunity grounds.
[4] The pendant state claim for abuse of process was held to be barred by sovereign immunity, which has not been waived by28 U.S.C.A. 2679(B)(1), because a probation officer is not a law enforcement officer within that section. Wilson v. U.S.,959 F.2d 12(2d Cir. 1992). Although no federal tort claim had been filed, the court noted that Crow had not timely exhausted his administrative remedies as required for such a claim by28 U.S.C.A. Section(s) 2675.
[5] Some four months after the district court entered its order dismissing the complaint, Crow filed a motion for leave to file an amended complaint. The court dismissed it as untimely and unjustified. Crow seeks to appeal from the order dismissing his complaint and the order denying his motion for leave to file an amended complaint.
[6] Crow's appeal fails for many reasons. His Section(s) 1983 claim is barred by Heck v. Humphrey,512 U.S. 477,114 S.Ct. 2364(1994), which held that to recover damages for an unconstitutional conviction or imprisonment a Section(s) 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by an authorized state tribunal, or called into question by a federal court's issuance of a writ of habeas corpus. Heck applies to Bivens actions. Stephenson v. Reno,28 F.3d 26(5th Cir. 1994). It applies to proceedings that call into question the fact or duration of parole or probation. Jackson v. Vannoy,49 F.3d 175(5th Cir.), cert. denied,116 S.Ct. 148(1995).
[7] Crow's claim necessarily implies the invalidity of his parole revocation. He alleges that the probation officer and others conspired to have the search and arrest warrants issued and that the probation officer falsely testified at his probation revocation hearing. The civil claim for damages amounts to a collateral attack on his parole revocation and subsequent incarceration. Heck does not permit this.
[8] With respect to Crow's arguments concerning the Federal Tort Claims Act the court did not err in denying his untimely motion for leave to file an amended complaint to reframe his complaint to allege a claim under that Act. The amendment was never filed, so there is not before us for review the comment by the district court in its motion to dismiss order that Crow had failed to exhaust the administrative remedies required as a prerequisite to suit under the Act.
[9] There is no merit to other contentions by the plaintiff.
[10] The decision of the district court is AFFIRMED.Page 1088
- The Honorable John C. Godbold, Senior U.S. Circuit Judge for the Eleventh Circuit, sitting by designation. ↩