robert-charles-moore-stephen-mark-kirby-v-tony-knotts-bill-p-lane , 51 F.3d 286 ( 1995 )

51 F.3d 286

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Robert Charles MOORE, Stephen Mark Kirby, Plaintiffs-Appellants,
v.
Tony KNOTTS, Bill P. Lane, Dennis Wesley, Michael S.
Emerson, Dan Cheatam, James E. Murphy, Mike
Johnson, Flint Knight, Rex Bogle, Keith
Rice, Defendants-Appellees.

No. 94-2171.

United States Court of Appeals, Tenth Circuit.

March 29, 1995.

Before MOORE, ANDERSON and KELLY, Circuit Judges.*

ORDER AND JUDGMENT**

PAUL KELLY, Jr., Circuit Judge.

1

Mr. Moore and Mr. Kirby appeal from a grant of summary judgment in favor of Defendants-Appellees on their civil rights claims, 42 U.S.C. Sec. 1983, for monetary relief. The claims arose out of their convictions for armed robbery and related charges between December 1986 and May 1988. Previously, the district court dismissed the claims for equitable relief as a challenge to the fact or duration of confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); I R. doc. 5.

2

Mr. Moore and Mr. Kirby contend that the district court erred in dismissing what remained of their action (filed February 8, 1993) as barred by a three-year limitation period, I R. doc. 38, and by staying discovery while the motion for summary judgment was pending, id. doc. 33. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and we affirm.

3

Even with mandated liberal construction, we agree with the district court that the uncontroverted facts establish that, by the time of their trials, Mr. Moore and Mr. Kirby knew or should have known of the alleged irregularities. See Industrial Constructors Corp. v. United States Bureau of Reclamation, 15 F.3d 963, 968-69 (10th Cir.1994). Thus, summary judgment on limitations grounds was appropriate. In the alternative, we affirm the district court's summary judgment on the grounds that, in order to prevail on the claims for damages, Mr. Moore and Mr. Kirby would be required to plead and prove that their convictions have been set aside. See Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994). Finally, we find no abuse of discretion in the magistrate's stay of discovery. See Cole v. Ruidoso Municipal Schools, 43 F.3d 1373, 1386 (10th Cir.1994).

4

AFFIRMED. The mandate shall issue forthwith.

*

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore is ordered submitted without oral argument

**

This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order. 151 F.R.D. 470 (10th Cir.1993)