FILED
United States Court of Appeals
Tenth Circuit
May 28, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
GUIDO JOHN ALVILLAR,
Plaintiff - Appellant, No. 09-4223
v. (D. Utah)
UTAH STATE BOARD OF (D.C. No. 2:09-CV-00659-CW)
PARDONS; CURTIS L. GARNER,
Chairman of the Utah State Board of
Pardons; JESSE GALLEGOS, Utah
Board of Pardons member; CLARK A.
HARMS, Utah Board of Pardons
member; KEITH N. HAMILTON,
Utah Board of Pardons member;
ROBERT S. YEATES, Utah Board of
Pardons member; UTAH
DEPARTMENT OF CORRECTIONS;
CHRISTOPHER KISHIYAMA,
employee of Utah Department of
Corrections; MARC A. NOWAK,
employee of Utah Department of
Corrections; STEVEN TURLEY,
Warden, Utah State Prison; MIKE R.
SIBBET, Utah Board of Pardons
member; CHERYL HANSEN,
Chairman of the Utah State Board of
Pardons; DONALD E. BLANCHARD,
Utah Board of Pardons member;
GARCIA G. KURUMADA, employee
for indigent parolees; RUSSELL
SAINSBURY, employee of
Department of Corrections,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
Guido John Alvillar, an inmate in Utah State Prison proceeding pro se and
in forma pauperis, filed in the United States District Court for the District of Utah
this civil rights action under 42 U.S.C. § 1983. He attacks the fairness of his
2002 and 2009 parole-revocation proceedings on the grounds (1) that on both
occasions he was improperly denied probable-cause hearings and his parole-
revocation hearings were not held within a reasonable time, (2) that his appointed
counsel ineffectively represented him during both hearings, and (3) that in 2002
the parole board relied on inaccurate information in denying him parole. He
named as defendants the Utah Department of Corrections (UDOC), Utah Board of
Pardons (Board), Board members, UDOC employees, and his counsel for the
Board proceedings. He seeks damages and immediate release from confinement.
The district court dismissed the complaint under 28 U.S.C.
*
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)(2); 10th Cir. R. 34.1(G). The case is
therefore 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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§ 1915(e)(2)(B)(ii) for failure to state a claim. It ruled that all claims related to
the 2002 revocation proceedings were barred by the Utah four-year limitations
period applicable to § 1983 claims. See Fratus v. DeLand, 49 F.3d 673, 675 (10th
Cir. 1995). As for the 2009 claims, it dismissed the claims against the Utah
Department of Corrections and its employees on the ground that Mr. Alvillar had
not established the required “affirmative link” between their actions and his
alleged constitutional deprivations, R. at 79 (internal quotation marks omitted);
held that Mr. Alvillar’s claims against the UDOC and against the Board and its
members in their official capacities were barred by the Eleventh Amendment; and
ruled that the Board members enjoyed common-law absolute immunity from suit
in their individual capacities.
“We review de novo the district court’s decision to dismiss an [in forma
pauperis] complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a
claim.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). We may affirm the
district court’s decision on any ground supported by the record. See Duncan v.
Gunter, 15 F.3d 989, 991 (10th Cir. 1994). Because Mr. Alvillar is acting pro se,
we construe his pleadings liberally. See Kay, 500 F.3d at 1218.
Relying on Heck v. Humphrey, 512 U.S. 477 (1994), Mr. Alvillar argues on
appeal that the district court erred in holding that his 2002 claims were time-
barred because his claim could not accrue “until [his] parole revocation [is]
overturned or [he] is released.” Aplt. Br. at 6. He is partially correct, but his
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claim nonetheless fails. In Heck a state prisoner brought a § 1983 action for
damages, alleging that state officials had unconstitutionally caused his conviction.
See 512 U.S. at 479. The Supreme Court held:
[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence invalid, 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.
Id. at 486–87 (footnote omitted). The Court stated that under its analysis, a
“statute of limitations poses no difficulty while . . . challenges [to the conviction]
are being pursued, since the § 1983 claim has not yet arisen.” Id. at 489. It
explained that “a § 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until the conviction or
sentence has been invalidated.” Id. at 489–90. Heck has been applied to parole-
revocation proceedings. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005);
Spencer v. Kemna, 523 U.S. 1, 17 (1998).
Thus, Mr. Alvillar is correct that his 2002 claims are not time-barred to the
extent that he seeks damages for conduct that would render his parole revocation
unconstitutional. But by the same token he cannot pursue such claims until that
revocation has been set aside, which has not occurred. His appellate brief
contends that he can bring such claims once he is released from prison; but Heck
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unambiguously requires that the conviction or sentence be invalidated, not just be
served. See 512 U.S. at 490 n.10.
Mr. Alvillar’s only other contention on appeal is that Eleventh Amendment
immunity is not available for a knowing and intentional violation of constitutional
rights. The authorities he cites do not support his contention, and we are aware of
no authoritative support. Courts regularly recognize Eleventh Amendment
immunity for intentional conduct. See, e.g., Nielander v. Bd. of County Comm'rs
of County of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009) (Eleventh
Amendment immunity applies to shield state attorney from malicious-prosecution
claim).
Accordingly, we AFFIRM the district court’s dismissal of Mr. Alvillar’s
suit. We GRANT Mr. Alvillar’s motion to proceed in forma pauperis, and we
remind him of his continuing obligation to make partial payments until the entire
fee has been paid in full.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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