Kerr v. Gunn ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-6877
JAMES KERR,
Plaintiff - Appellant,
versus
WILLIAM E. GUNN; J. P. HODGES; DAVID A. FASH-
ION, JR., individually and in their respective
official capacities,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge;
Robert S. Carr, Magistrate Judge. (CA-96-2782-2-18AJ)
Submitted: November 18, 1997 Decided: December 15, 1997
Before HALL, LUTTIG, and MOTZ, Circuit Judges.
Affirmed as modified by unpublished per curiam opinion.
James Kerr, Appellant Pro Se. Carl Norman Lundberg, SOUTH CAROLINA
DEPARTMENT OF PROBATION, PAROLE & PARDON SERVICES, Columbia, South
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals the district court's order granting Defen-
dants' motion for summary judgment and denying his motion for ap-
pointment of counsel. We have reviewed the record and the district
court's opinion and find no reversible error. Appellant filed an
action seeking damages, challenging the validity of his parole
rescission. To recover damages for an allegedly unconstitutional
conviction or sentence, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a pris-
oner must prove that the conviction or sentence was: (1) reversed
on direct appeal; (2) expunged by executive order; (3) declared
invalid by a state tribunal authorized to make such a determina-
tion; or (4) called into question by a federal court's issuance of
a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). Because Appellant has failed to make such a showing, his
claim is not ripe and must be dismissed without prejudice. Accord-
ingly, we affirm as modified to reflect dismissal without prejudice
to Appellant's right to file another action if his claim becomes
ripe. Appellant's pending motions to extend time to perfect his
appeal and to quash affidavit and appeal are denied. 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 the decisional process.
AFFIRMED AS MODIFIED
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