PUBLISH
UNITED STATES COURT OF APPEALS
Filed 1/18/96
TENTH CIRCUIT
FRED L. FOTTLER,
Plaintiff - Appellant, No. 95-2083
v.
UNITED STATES OF AMERICA; GARY
L. AINSWORTH, Special Agent,
ATF; PAUL HEH, Sargeant, APD;
FRED MOORE, Special Agent,
DEA; DAVID BOHN also known as
Peter Adang; JAMES TIERNEY,
AUSA, individually and in
their official capacities,
Defendants - Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CIV 94-1011 LH/LFG)
Submitted on the briefs:
Fred Fottler, pro se, Boron, California, for Plaintiff-Appellant.
_________________________
Before SEYMOUR, Chief Judge, McKAY and HENRY , Circuit Judges.
McKAY, Circuit Judge.
________________________
After examining appellant’s brief and the 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. The case is therefore
ordered submitted without oral argument.
Plaintiff Fred Fottler, a federal prisoner, appeals the
dismissal of his civil rights action brought under 42 U.S.C.
§ 1983 and various other statutes. Mr. Fottler proceeds pro se
and in forma pauperis. He alleged in his complaint that the
means used to arrest and convict him were unconstitutional. The
magistrate judge recommended dismissing the case as frivolous
under 28 U.S.C. § 1915(d) because of the Supreme Court’s holding
in Heck v. Humphrey, 114 S. Ct. 2364 (1994). Heck establishes
that a plaintiff may not use a § 1983 action to challenge the
constitutionality of his conviction if that conviction has not
been reversed or otherwise set aside. Id. at 2372. The
magistrate judge reasoned that Heck controls, because “Plaintiff
has not successfully set aside, or challenged his federal
conviction . . . .” R. Vol. I, pt. 2, at 4.
Mr. Fottler moved for a thirty-day extension of time to file
objections to the magistrate judge’s recommendations. R. Vol.
I., pt. 3. The magistrate judge granted Mr. Fottler’s motion.
R. Vol. I, pt. 7. Mr. Fottler then requested, in a document
styled “Objections To Denied Motions”, that the court dismiss his
action without prejudice, if the court were indeed inclined to
dismiss. R. Vol. I, pt. 11. Otherwise, Mr. Fottler did not file
any objections to the magistrate judge’s recommendations. The
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district court adopted the magistrate judge’s analysis and
recommended disposition and dismissed Mr. Fottler’s complaint
with prejudice.
Failure of a plaintiff to object to a magistrate judge’s
recommendations results in a waiver of appellate review. Moore
v. United States, 950 F. 2d 656, 659 (10th Cir. 1991). This
remains true for pro se litigants if the plaintiff was properly
informed of the consequences of his failure to object. Id. We
may make an exception to this rule, however, where the interests
of justice so require. Id. Here, Mr. Fottler was properly
notified in the magistrate judge’s recommendations of the
consequences of failing to object. R. Vol. I, pt. 2, at 1 n.1.
Mr. Fottler did not object to the dismissal of his action
pursuant to § 1915(d). Thus, he has waived appellate review of
this issue. The interests of justice do not require us to make
an exception in this case.
Mr. Fottler did object, however, to the magistrate judge’s
recommendation that the action be dismissed with prejudice.
Construing a pro se litigant’s pleadings liberally, we find that
Mr. Fottler’s motion entitled “Objections to Denied Motions”
properly raised an objection to the magistrate judge’s
recommendation that the action be dismissed with prejudice. We
conclude that the district court erred when it adopted this
recommendation.
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When a § 1983 claim is dismissed under Heck, the dismissal
should be without prejudice. See, e.g., Perez v. Sifel, 57 F. 3d
503, 505 (7th Cir. 1995) (per curiam); Trimble v. City of Santa
Rosa, 49 F. 3d 583, 585 (9th cir. 1995); Schafer v. Moore, 46 F.
3d 43, 45 (8th Cir. 1995). If Mr. Fottler is later successful in
overturning his conviction, he should be allowed to bring his
§ 1983 action at that time. Thus, his case should be dismissed
without prejudice.
We AFFIRM the district court but REMAND with directions to
MODIFY the judgment to reflect that Mr. Fottler’s claim is
dismissed without prejudice.
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