FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 5, 2009
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
RICHARD A. NICHOLS,
Plaintiff-Appellant, No. 08-4158
v. (D. of Utah)
MARK BAER, COLIN (D.C. No. 08-CV-89-DAK)
WINCHESTER, and BRYCE GREER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges. **
Richard A. Nichols, appearing pro se, appeals the district court’s dismissal
of his § 1983 suit against Utah state officials Mark Baer, Colin Winchester, and
Bryce Greer alleging that these defendants violated his constitutional rights.
Taking jurisdiction under 28 U.S.C. § 1291, we affirm.
*
This order and judgment is not binding precedent except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Background
The parties are familiar with the facts and procedural history, so we provide
only the highlights. In 2002, after a three-day bench trial, Nichols was convicted
of five felony counts of communication fraud and one count of racketeering
relating to his conduct while employed at a used-car dealership. See Utah v.
Nichols, 76 P.3d 1173, 1175 (Utah App. 2003). He was sentenced to 365 days in
jail and required to pay $42,400 in restitution. His probation conditions included
the timely payment of restitution.
The Utah Court of Appeals affirmed Nichols’s convictions. Nichols, 76
P.3d at 1182. On December 10, 2003, the Utah Supreme Court denied certiorari.
See Utah v. Nichols, 84 P.3d 239 (Utah 2003).
Subsequently, Nichols failed to appear at a review hearing regarding his
progress towards making restitution, and the state court issued an arrest warrant
on December 23, 2003. On May 23, 2007, Nichols was arrested pursuant to the
2003 warrant, but he claimed to have medical problems and was not booked into
jail. He was instead taken to a hospital and released. On May 29, 2007, Assistant
Utah Attorney General Baer requested an order to show cause hearing in state
court. The hearing was scheduled for June 4, 2007, but Nichols failed to appear,
and instead filed a request for continuance. The court denied the request and
issued a new arrest warrant. On June 6, 2007, Nichols filed a motion to dismiss
the order.
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Throughout June 2007, Nichols filed numerous documents in state court,
culminating in a Notice of Removal to federal district court. The federal district
court, however, remanded the case back to state court. The federal district court
informed Nichols that the case was closed and no further filings would be
accepted; the court also indicated that if Nichols wished to bring a civil action he
must initiate a new action by filing and serving a complaint.
Then, on February 4, 2008, Nichols filed a verified complaint alleging a
violation of his constitutional rights by his convictions in state court and by
attempts to enforce the restitution order issued as part of his sentence. This
verified complaint is at issue in this appeal.
In it, Nichols cited the 14th Amendment and the Utah constitution as the
bases for his claims. He sought a declaration that the defendants violated his
constitutional rights by prosecuting him, and sought an order enjoining the
defendants from additional legal proceedings relating to his state court criminal
case.
The district court dismissed the case, finding that the case was time-barred,
and that the Rooker-Feldman and Younger abstention doctrines applied, as did
Heck v. Humphrey, 512 U.S. 477 (1994). The district court also found that the
defendants would be entitled to absolute prosecutorial or qualified immunity.
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Analysis
Although we construe Nichols’s pro se filings liberally, see Hall v.
Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), we affirm the dismissal of
Nichols’s claims. While the vast majority of his claims are time-barred, his entire
case in barred under the teaching of Heck v. Humphrey, 512 U.S. at 486–87.
In Heck, the Supreme Court explained that a § 1983 action that would
impugn the validity of a plaintiff’s underlying conviction cannot be maintained
unless the conviction has been reversed on direct appeal or impaired by collateral
proceedings. Id. The purpose behind Heck is “to prevent litigants from using a
§ 1983 action, with its more lenient pleading rules, to challenge their conviction
or sentence without complying with the more stringent exhaustion requirements
for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007)
(citation omitted). Heck was clear that “civil tort actions are not appropriate
vehicles for challenging the validity of outstanding criminal judgments.” 512
U.S. at 486.
Nichols’s complaint alleges civil rights violations based on his 2002
criminal convictions and the state’s attempts to enforce the restitution order
issued as part of the sentence. Nichols’s complaint—including his allegations
concerning the 2007 warrants for his arrest based on his failure to comply with
the restitution order—challenges his underlying convictions and sentence. He
contends that the original court order was illegal, and that he had no legal
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obligation to pay restitution. As we interpret his assertions, Nichols is in essence
arguing that the trial court improperly ordered restitution. Based on this
argument, he contends that officials have falsely arrested him and engaged in a
scheme to defraud him in their efforts to ensure he pays this court-ordered
restitution.
This argument attacks Nichols’s underlying convictions and sentence.
Heck mandates that when a litigant seeks damages in a § 1983 suit, the district
court must consider whether a judgment in his favor would necessarily imply the
invalidity of his conviction or sentence. 512 U.S. at 487. Here, it would. If a
court were to find that Nichols did not owe restitution—that the restitution order
was improper—that finding would imply the invalidity of Nichols’s conviction or
sentence. Thus, “the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated.” Id.
Nichols cannot make such a showing, as Utah courts have affirmed his
convictions. See Nichols, 76 P.3d at 1182. The district court therefore properly
dismissed Nichols’s complaint.
Conclusion
For the foregoing reasons, we AFFIRM the dismissal of Nichols’s verified
complaint. We also DENY his requests to proceed in forma pauperis.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
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