F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 18 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
DEMETRIO MUNOZ,
Plaintiff-Appellant,
v. No. 98-2002
(D.C. No. CIV-97-1337-BB)
J. LEE CATHEY, Attorney at Law, (D. N.M.)
Carlsbad, NM; MARK L. PICKERING,
District Attorney, Carlsbad, NM; JAMES
L. SHULER, District Court Judge,
Carlsbad, NM; RUBEN MONTEZ,
Narcotics Agent,
Defendants-Appellees.
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, Circuit Judges.
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. Therefore, the case 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This order and judgment is not binding precedent, except under the doctrines of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 10th Cir. R. 36.3.
Demetrio Munoz appeals the district court’s order dismissing his 42 U.S.C. § 1983
action. We affirm.
Munoz brought his § 1983 action against his state trial counsel, the state district
attorney who prosecuted his case, the state court judge who presided at trial, and a state
narcotics agent who testified in the case. He claimed defendants engaged in a conspiracy
to wrongfully convict him in state court. Munoz alleged defendants met outside his
presence during a break in the trial, resulting in Munoz’ counsel failing to call a witness
to testify on his behalf and in the state narcotics agent changing his trial testimony.
Munoz sought monetary relief against defendants in their individual and official
capacities, unspecified injunctive and declaratory relief, and prospective relief. The
district court concluded Munoz’s § 1983 claim for declaratory relief and damages “calls
into question the constitutionality of the criminal conviction by which he is incarcerated,”
and dismissed the action without prejudice. Record, Doc. 6 at 2. The court also
dismissed Munoz’s claims for prospective relief.1
To recover damages for allegedly unconstitutional convictions or imprisonment, or
for other harms caused by actions whose unlawfulness would render a conviction or a
sentence invalid, a § 1983 plaintiff must prove the conviction or sentence has been
1
On appeal, Munoz also claims the district court erred in failing to allow him to
object to the magistrate court’s recommendations. The record indicates the district court
referred Munoz’s claim to a magistrate, but there is no indication the magistrate issued
any recommendations before the district court dismissed the case.
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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 v. Humphrey, 512 U.S. 477, 487 (1994). Thus, when a state prisoner seeks
damages under § 1983, the district court must consider whether a judgment in favor of
plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would,
the complaint must be dismissed unless plaintiff can demonstrate the conviction or
sentence has already been invalidated. Id. However, when a § 1983 claim is dismissed
under Heck, the dismissal should be without prejudice so if defendant is later successful
in overturning his conviction he can bring a new § 1983 action. See Fottler v. Untied
States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).
Munoz claims his conviction was unconstitutional. He has made no attempt to
comply with Heck. There is no indication in the record that his conviction or sentence
has been reversed, expunged, declared invalid, or called into question by a federal court’s
issuance of a writ of habeas corpus. Therefore, his claims for monetary and declaratory
relief were properly dismissed.
Munoz also sought prospective relief; specifically, “resignation of all state and
private officials for violating Plaintiff’s Civil and Constitutional Rights in entering into
the conspiracy, under color of state law, in order to force integrity into processes for the
Full-Faith and Credit Clause.” Record, Doc. 1 at 6. A § 1983 plaintiff’s claim for
prospective relief does not necessarily call into question the constitutionality of the
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criminal conviction for which he is incarcerated. See Edwards v. Balisok, 117 S.Ct.
1584, 1589 (1997). Therefore, a § 1983 claim that does not “imply the invalidity of the
punishment imposed” is cognizable if plaintiff can establish standing and meet the other
necessary requirements. Id. Munoz’s claim clearly implies invalidity of his conviction
and was properly dismissed.
AFFIRMED. The mandate shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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