F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 2002
TENTH CIRCUIT
PATRICK FISHER
Clerk
BILLY DEAN HARMON,
Plaintiff-Appellant, No. 01-7098
v. (E.D. Oklahoma)
DEBRA K. DAVIDSON, Court (D.C. No. 00-CV-556-S)
Reporter, and LORI SOKOLOSKY-
FAULKNER, Official Court Reporter
Defendants-Appellees.
ORDER AND JUDGMENT *
Before HENRY , BRISCOE , and MURPHY , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without
oral argument.
*
This order and judgment is not binding precedent, except under the
doctrines of res judicata, collateral estoppel, and law of the case. 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.
Billy Dean Harmon, a state prisoner proceeding pro se, seeks leave to
proceed in forma pauperis (“ifp ”) in the appeal of the district court’s dismissal of
his 42 U.S.C. § 1983 civil action. We conclude that Mr. Harmon’s § 1983 claims,
if true, would implicate his conviction and sentence and must thus be first
pursued via a habeas action. Because Mr. Harmon’s appeal fails to present a
“reasoned, nonfrivolous argument on the law and facts in support of the issues
raised on appeal,” DeBardeleben v. Quinlan , 937 F.2d 502, 505 (10th Cir. 1991),
we deny ifp status and dismiss this appeal.
On February 9, 1999, an Oklahoma jury convicted Mr. Harmon of a
criminal violation of Oklahoma law; the Oklahoma trial court entered a prison
sentence. Mr. Harmon unsuccessfully appealed his conviction and sentence to the
Oklahoma Court of Criminal Appeals. Subsequently, Mr. Harmon filed a habeas
corpus action “making an issue of the same ground on which my [§] 1983
complaint is based.” Rec. (letter to the Clerk of Court, filed Nov. 5, 2001, at 2
(unpaginated)). That habeas petition is “pending.” Id.
On October 13, 2000, Mr. Harmon filed this § 1983 action in the United
States District Court for the Eastern District of Oklahoma. In the action, Mr.
Harmon asserts that two court reporters deliberately falsified testimony in
preparing the official transcripts of his Oklahoma criminal trial. Mr. Harmon
asserts that the falsified transcripts undermined his criminal appeal by preventing
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him from establishing that at least one trial witness, Officer Keith Shepard,
offered perjured testimony. “The missing testimony . . . goes to the heart of my
claim that my conviction was the result of a conspiracy between [the] police and
the court.” Rec. vol. I, doc. 2, at 2 (Complaint, filed Oct. 13, 2000). Mr. Harmon
sought “compensatory . . . and punitive damage awards totaling $500,000 for each
civil rights violation.” Id. at 6 (unpaginated after page 4).
The district court dismissed Mr. Harmon’s § 1983 action. The district court
noted that if Mr. Harmon were to establish the claims underlying his § 1983
action, he would establish grounds to vacate at least his sentence and possibly his
conviction as well. Since the Supreme Court has directed that in such
circumstances a plaintiff-petitioner must pursue habeas relief before bringing a §
1983 action, the district court dismissed Mr. Harmon’s § 1983 action. See Heck
v. Humphrey , 512 U.S. 477, 487 (1994) (“[W]hen a state prisoner seeks damages
in a § 1983 suit, the district court must consider whether a judgment in favor of
the plaintiff would necessarily imply the invalidity of [the plaintiff’s] conviction
or sentence; if it would, the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.”).
Given Mr. Harmon’s pro se status, we construe his contentions liberally.
See Haines v. Kerner , 404 U.S. 519, 520-21 (1972) (per curiam). Having
reviewed Mr. Harmon’s appellate brief, the district court’s order, and the
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appellate record, we conclude that the district court correctly dismissed Mr.
Harmon’s § 1983 action. Thus, for substantially the same reasons set forth in the
district court’s July 13, 2001 order, we DENY Mr. Harmon’s request for leave to
proceed ifp and DISMISS this appeal.
Entered for the Court,
Robert H. Henry
Circuit Judge
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