Burden v. Fiek

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
November 6, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SHANE BURDEN,
Plaintiff-Appellant, No. 06-1202
v. (D.C. No. 06-cv-204-ZLW )
OFFICER B. FIEK; OFFICER (D . Colo.)
M A TH ER SO N ,
Defendants-Appellees.

OR D ER AND JUDGM ENT *

Before K ELLY, M cK AY, and LUCERO, Circuit Judges.

After examining Appellant’s brief and the record on appeal, 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 is a pro se state prisoner § 1983 appeal. Appellant filed a complaint

alleging violations of his constitutional rights in connection with his arrest and

incarceration. He alleges that his arrest and incarceration were the result of “a

big set up” as evidenced by an unconstitutional line-up, a violation of his

*
This order and judgment is not binding precedent, except under the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.
M iranda rights, and Appellees’ perjury. He seeks monetary damages and “[his]

freedom back.” The district court dismissed the complaint without prejudice

pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). This appeal followed.

Under Heck, a § 1983 plaintiff seeking damages “for allegedly

unconstitutional conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,” must first

“prove that the conviction or sentence has been reversed on direct appeal,

expunged by executive order, declared invalid by a state tribunal . . . or called

into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-

87. As the district court noted, Appellant does not allege that his sentence has

been invalidated, and “the fact that he asserts he is serving a twenty-four year

sentence due to [Appellees’] acts indicates that he has not invalidated the

sentence.” O rder and Judgment of Dismissal at 2, No. 06-cv-00204-BNB (D.

Colo. M ar. 30, 2006). W e further note that Appellant does not assert that his

sentence has been reversed or expunged, nor does he allege that his conviction

was called into question by issuance of a federal habeas writ. Thus, Appellant’s

claim for damages is barred by Heck.

To the extent that Appellant seeks habeas relief from wrongful

imprisonment, the district court correctly noted that Appellant’s “sole federal

remedy is a writ of habeas corpus pursuant to 28 U.S.C. § 2241, see Preiser v.

Rodrigeuz, 411 U.S. 475, 504 (1973), after exhaustion of state remedies, see 28

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U.S.C. § 2254(b)(1).” Order and Judgment of Dismissal at 3.

Therefore, we A FFIR M the district court’s dismissal of Appellant’s

complaint. W e GR A N T Appellant’s motion for leave to proceed on appeal

without prepayment of costs or fees, and we remind Appellant of his obligation to

make the payments until the entire fee has been paid.

Entered for the Court

M onroe G. M cKay
Circuit Judge

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