Rivers v. King ( 2001 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 21 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk
MELVYN PAUL RIVERS,
Plaintiff-Appellant,
v.
DANIEL B. KING; LINDA No. 01-1294
SWANSON; LANGSTAFF; IRVING (D.C. No. 01-Z-611)
ETTENBERG; D.A. VERNON; (Colorado)
CHRISTOPHER CROSS; PHILLIP M.
CLARK; PAT SULLIVAN;
BARBARA DENMARK; LEE
GRAAF; and ROBERT RUSSELL,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, Chief Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior
Circuit Judge.
After examining plaintiff’s opening brief and the 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)(2); 10th Cir. R.
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
34.1(G). The case is therefore ordered submitted without oral argument.
Plaintiff Melvyn Paul Rivers, proceeding pro se, is appealing the district
court’s order and judgment dismissing his civil rights complaint. Our jurisdiction
arises under 12 U.S.C. § 1291. We affirm.
Plaintiff was convicted of first degree assault under Colorado law.
He received, and is currently serving, a mandatory enhanced sentence for
committing a crime of violence. Plaintiff has filed this civil rights action under
42 U.S.C. § 1983 against his public defender, two of the district attorneys
involved in the state court prosecution, four state court judges, a detective, two
state probation office employees, and a county sheriff. In his complaint, plaintiff
claimed that he was falsely arrested, that he was subjected to double jeopardy and
excessive bail, and that his due process, equal protection, and Eighth Amendment
rights were violated because: (1) he was originally arrested and detained on a
charge of second degree assault; however, while he was being detained on that
charge, the district attorney obtained an “at large” arrest warrant on the charge of
first degree assault based on perjured testimony; (2) he was never arrested or
given bond on the charge of first degree assault; (3) he was detained on the
charge of second degree assault without a court order; (4) he was deprived of his
right to habeas relief on the charge of second degree assault; and (5) he received
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an enhanced sentence based on false information in the presentence report. 1
Plaintiff requested both money damages and that he be immediately released from
prison and his entire criminal record expunged. Plaintiff also requested that
defendants be prosecuted under local law.
The district court dismissed plaintiff’s complaint. First, the court found
that a judgment in plaintiff’s favor under § 1983 would necessarily imply the
invalidity of his conviction. Accordingly, the court found that plaintiff’s claims
are subject to Heck v. Humphrey , 512 U.S. 477 (1994), and that, under Heck , he
“may not seek an award of damages unless he has invalidated his conviction prior
to bringing this action.” 2
R., Doc. 11, at 3. Because plaintiff failed to show that
his conviction was invalidated prior to the filing of his § 1983 claims, the district
court dismissed the claims against the detective, the sheriff, and the probation
office employees without prejudice.
Second, the court dismissed plaintiff’s claims against the remaining
defendants with prejudice, finding that the public defender was not acting under
Plaintiff’s specific claims against each individual defendant are set forth
1
on attachment A to his complaint.
2
Under Heck, in order to recover damages for an allegedly unconstitutional
conviction or sentence, “a § 1983 plaintiff must prove that the conviction or
sentence has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus, 28
U.S.C. § 2254.” Heck, 512 U.S. at 486-87.
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color of state law, see Polk County v. Dodson , 454 U.S. 312, 325 (1981), that the
district attorneys are entitled to absolute immunity because they were acting
within the scope of their duties as prosecutors, see Imbler v. Pachtman , 424 U.S.
409, 427 (1976), and that the state court judges are entitled to absolute immunity
because they were acting in their judicial capacity, see Hunt v. Bennett , 17 F.3d
1263, 1266 (10th Cir. 1994).
Because he is proceeding pro se, we must construe plaintiff’s complaint
liberally. Id. at 1265. Further, “[t]he sufficiency of a complaint is a question of
law which we review de novo .” Id. (quotation omitted). “Accordingly, we apply
the same scrutiny to the complaint as did the trial court.” Id. (quotation omitted).
In this regard, we assume the district court dismissed plaintiff’s complaint under
Fed. R. Civ. P. 12(b)(6) for failure to state a claim. We therefore accept the well-
pleaded allegations in the complaint as true and construe them in the light most
favorable to plaintiff. See Yoder v. Honeywell Inc. , 104 F.3d 1215, 1224 (10th
Cir. 1997).
Applying these standards, we agree with the district court’s analysis. We
affirm the dismissal of plaintiff’s complaint for the reasons set forth in the district
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court’s order and judgment dated June 12, 2001. 3
Finally, plaintiff’s motion to proceed on appeal without prepayment of the
filing fee is granted. We remind plaintiff that because his motion to proceed in
forma pauperis on appeal was granted, he must continue making partial payments
on court fees and costs previously assessed until such have been paid in full.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED . 4
Entered for the Court
Stephanie K. Seymour
Circuit Judge
3
Even if we construe plaintiff’s complaint as an application for a writ of
habeas corpus under 28 U.S.C. § 2254, he has not shown that he exhausted all
available judicial remedies in state court, a prerequisite to habeas relief. See §
2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 731 (1991).
4
Plaintiff also filed a petition for writ of mandamus in this court on August
6, 2001. To the extent his request for mandamus is directed against state
officials, this court has no jurisdiction to mandamus state officials because the
statutory power to grant such writs is provided only against federal officials. 28
U.S.C. § 1361. See also Amisub (PSL), Inc. v. Colorado Dep’t of Soc. Services ,
879 F.2d 789, 790 n.2 (10th Cir. 1989). To the extent he requests us to compel
the district court to investigate state defendants’ alleged actions, his request
merely restates the grounds for his initial suit in district court and duplicates his
appeal of the district court’s dismissal of that suit. As we stated in United States
v. Gundersen , “if appeal is available to petitioners as a means of redress, their
case is not appropriate for mandamus relief.” 978 F.2d 580, 582 (10th Cir. 1992).
See also Olson v. Hart , 965 F.2d 940, 942-43 (10th Cir. 1992) (denying writ of
mandamus but remanding to determine whether suit stated claim for habeas relief
or relief under section 1983).
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