Crow v. Penry ( 1996 )

UNITED STATES COURT OF APPEALS
Tenth Circuit
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80294
(303) 844-3157
Patrick J. Fisher, Jr. Elisabeth A. Shumaker
Clerk Chief Deputy Clerk
January 15, 1997
TO: All recipients of the captioned opinion
RE: No. 95-1216, Crow v. Penry
December 17, 1996
Please be advised of the following correction to the captioned decision:
In the second line from the top of page 2 of the opinion, the cite “28 U.S.C.A. § 7401 et
seq." is incorrect. The correct cite is: 28 U.S.T. 7399 et seq.
Please make the appropriate correction.
Very truly yours,
Patrick Fisher, Clerk
Susie Tidwell
Deputy Clerk
PUBLISH
UNITED STATES COURT OF APPEALS
Filed 12/17/96
TENTH CIRCUIT
SCOTT R. CROW, )
)
Plaintiff-Appellant, )
)
v. ) No. 95-1216
)
)
DANIEL W. PENRY, et al., )
)
Defendants-Appellees. )
)
)
Appeal from the United States District Court
for the District of Colorado
(D.C. No. 94-CB-504)
__________
Ross B.H. Buchanan of Buchanan, Jurdem & Zulauf, Denver, Colorado, for Plaintiff-
Appellant.
Kathleen L. Torres, Assistant U.S. Attorney, Denver, Colorado, (Henry L. Solano, United
States Attorney, and William G. Pharo, Assistant U.S. Attorney, Denver, Colorado, with her
on the brief), for Defendants-Appellees.
__________
Before TACHA, Circuit Judge, GODBOLD,* and HOLLOWAY, Senior Circuit Judges.
__________
*
The Honorable John C. Godbold, Senior U.S. Circuit Judge for the Eleventh
Circuit, sitting by designation.
PER CURIAM:
Appellant Crow was convicted in Mexico of a drug violation. Pursuant to a treaty
with Mexico concerning transfer of prisoners, see 28 U.S.T. 7399 et seq., he was transferred
to a federal institution in the United States to serve the remainder of his sentence. Later he
was released on parole and signed a form describing as a condition of parole that he agreed
not to possess firearms. Subsequently, his parole was revoked because he was found to be
in possession of firearms, and he was returned to federal custody.
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 § 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.
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
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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.
The pendant state claim for abuse of process was held to be barred by sovereign
immunity, which has not been waived by 28 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 by 28 U.S.C.A. §
2675.
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.
Crow's appeal fails for many reasons. His § 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 § 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.
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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).
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.
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.
There is no merit to other contentions by the plaintiff.
The decision of the district court is AFFIRMED.
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