IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20459
Summary Calendar
ROBERT JAMES BARNETT,
Plaintiff-Appellant,
versus
THE UNITED STATES SECRET SERVICE;
ELIZABETH HUERTA; BOB ROBERTS,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-96-CV-3884
_______________________________________________________________
June 18, 1999
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Robert James Barnett, Texas prisoner # 314835, appeals the
district court’s dismissal of his claims brought under 42 U.S.C.
§ 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The same substantive standards of
constitutional violations apply to claims in a Bivens action as to
a cause under § 1983. See Carlson v. Green, 446 U.S. 14, 19 (1980)
(approving Eighth Amendment Bivens claim). The district court may
dismiss an in forma pauperis (“IFP”) complaint as frivolous at any
time if it lacks an arguable basis in law or fact. See
*
Pursuant to 5th Cir. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5th Cir. R. 47.5.4.
§ 1915(e)(2)(B)(i); see Siglar v. Hightower, 112 F.3d 191, 193 (5th
Cir. 1997). The court reviews the dismissal of an IFP complaint as
frivolous for an abuse of discretion. Id.
The district court held that Barnett’s claims against the
United States Secret Service were barred because Barnett had failed
to show a waiver of sovereign immunity. Because Barnett has failed
to challenge this issue on direct appeal, it is deemed to have been
waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
This dismissal of Barnett’s claims against the United States Secret
Service is AFFIRMED.
The district court construed all of Barnett’s claims against
the individual defendants as arising out of the proceedings of
Barnett’s parole revocation and held that these claims were barred
under the doctrine of Heck v. Humphrey, 512 U.S. 477, 486 (1994).
Under Heck, a § 1983 plaintiff cannot recover damages for an
unconstitutional conviction or for “harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” until
he has shown 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.” Id. at 486-87. An action attacking the viability of
probation or parole revocation proceedings must satisfy the Heck
element as such an action calls into question the fact and duration
of confinement. See Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir.
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1995). Barnett concedes that his challenges to the parole
revocation proceedings would call into question the validity of his
incarceration. Therefore, the district court did not abuse its
discretion in dismissing these claims under Heck. The decision of
the district court is AFFIRMED as to these issues.
However, Barnett has also raised claims unrelated to his
parole revocation, involving false arrest, false imprisonment, and
malicious prosecution on counterfeiting charges that were
eventually dropped. If Barnett were to prevail on these issues, it
may not necessarily call into question the validity of his parole
revocation. Compare Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.
1995) (arrest and conviction for resisting a search; arrest cannot
be challenged in a § 1983 cause of action). The district court,
however, did not consider these issues as separate from the parole
revocation proceedings. The judgment of the district court is
therefore VACATED and the case REMANDED for further proceedings
only as to Barnett’s claims arising from his January 31, 1996
arrest.
Barnett’s motion for appointment of counsel is DENIED because
he has not shown extraordinary circumstances. See Cupit v. Jones,
835 F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209,
212 (5th Cir. 1982). His related motion to extend the time for
filing an appeal is also DENIED.
AFFIRMED in part; VACATED and REMANDED in part;
MOTIONS DENIED.
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