F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS SEP 8 1998 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

STEVEN R. MUELLER,

Plaintiff-Appellant,

v. No. 97-3348 (D.C. No. 96-3346-GTV) JEANNIE WARK, ROBERT (D. Kan.) HAINLINE, DENNIS MALLOT, BILL FINKE, MARILYN SCAFE, KANSAS PAROLE BOARD, THE STATE OF KANSAS, NAVONNE EASTER, KEN REIN, JOHN LAMB, CHARLES E. SIMMONS, MICAH A. ROSS, KANSAS DEPARTMENT OF CORRECTIONS,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. After examining the briefs and 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 appeals from the dismissal, without prejudice, of his civil rights

complaint prior to service. He also appeals from the denial of his motion to

amend the complaint to cure the identified deficiencies. We review the dismissal

de novo, see Brumark Corp. v. Samson Resources Corp. , 57 F.3d 941, 944

(10th Cir. 1995), the denial of amendment for abuse of discretion, see Manning

v. United States , 146 F.3d 808, 812 (10th Cir. 1998), and affirm.

Seeking damages and declaratory relief under 42 U.S.C. § 1983 and several

tort theories, plaintiff pleaded numerous objections to state procedures which had

led to the revocation of his parole. The district court reviewed the complaint and

concluded that it ran afoul of the principles set forth in Heck v. Humphrey ,

512 U.S. 477 (1994):

[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 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, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider

-2- whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his 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.

Id. at 486-87 (footnote omitted). These principles also apply “to proceedings that

call into question the fact or duration of parole,” Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996), whether damages or declaratory relief is sought, see White

v. Gittens , 121 F.3d 803, 807 n.3 (1st Cir. 1997).

We agree with the district court that “plaintiff’s allegations of error [in his

parole revocation proceedings] would implicate the validity of his continued

confinement,” and, thus, his § 1983 claims must be dismissed under Heck . 1

District Court Order filed Nov. 4, 1996. While some claims are nominally

directed at events other than the ultimate decision to revoke parole, all implicate

the validity of that decision. For example, plaintiff objects to his arrest and

detention for parole violation, but his objection--that his infraction was minor,

mistaken, or excusable--clearly also calls into question the decision finding and

disciplining that infraction. Likewise, claims of mishandling exculpatory and

inculpatory evidence, improper ex parte communications, and various due process

1 Since plaintiff’s § 1983 claims are not cognizable and, thus, could not support federal court jurisdiction, see White , 121 F.3d at 806 n.2, his pendent state claims also had to be dismissed, for lack of supplemental jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund , 81 F.3d 1182, 1188 (2d Cir. 1996); Bailey v. Johnson , 48 F.3d 965, 968 (6th Cir. 1995); see also Alexander v. Anheuser-Busch Cos. , 990 F.2d 536, 540 (10th Cir. 1993).

-3- violations are all, in substance, challenges to the evidentiary basis and procedure

underlying and leading to the revocation of parole. Finally, the complaint

contains one allegation alluding to additional, apparently unrelated constitutional

violations regarding “conditions of confinement” and “deliberate indifference,”

but this is done in such a generalized and conclusory fashion that no claim for

relief is even remotely stated.

Plaintiff’s motion to amend did not cure the deficiencies. His response to

the application of Heck just reflected his continued misunderstanding of the focus

of that case, which is on the legal implications of the objections raised, not the

relief sought, in the § 1983 action. As for the nebulous prison-condition claims,

he offered only the bald assurance that the “amended complaint will contain a

proper presentation of those claims,” without any factual detail or explanation as

to how, or even if, this could be done. Memorandum Brief in Support of Motion

to Amend Judgment and Complaint at 12-13. Further, he admitted “inclusion of

these claims will necessarily require the addition of newly named defendants,” id.

at 12, conceded he “would quite naturally not seek relation back [of] these newly

defined claims for relief,” id. , and stated “no statute of limitations problems exist

for these claims,” id. at 13. In short, he essentially assured the court there was no

legal or practical necessity to interject these claims, whatever they might be, into

this already terminated litigation. Under the circumstances, the district court did

-4- not abuse its discretion in refusing to vacate its prior judgment to permit the

proposed, but still unseen and unspecified, amendment.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge

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