IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-40478 Summary Calendar

WILLIAM LEE HEDRICK,

Plaintiff-Appellant,

versus

MARY ANN FLORES, Investigator, Cameron County Sheriff Department; ROBERTO RODRIGUEZ, Deputy Sheriff, Cameron County Sheriff Department; CARLOS DEL BOSQUE, Deputy Sheriff, Cameron County Sheriff Department; OFELIA CORONADO, Landlord, 858 Puebla Street, Apt. B, Brownsville, TX 78200; JEFFREY T. STRANGE, Assistant District Attorney for Cameron County, Texas; JOHN DOE, #1 Deputy Constable, Constable Cameron County, Texas; JOHN DOES, (2883) Four Deputy Sheriffs of Cameron County, Texas; BILL DOE, John Doe, #3 Deputy Sheriff Cameron County, Texas; P. VELA, Deputy Sheriff of Cameron County, Texas; J. GONZALES, Deputy Sheriff Brownsville, TX,

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Texas No. B-98-CV-120

December 22, 2000 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

William Lee Hedrick appeals, pro se, the dismissal of his

action for failure to state a claim. Hedrick’s

motions to compel discovery and obtain legal assistance and for a

default judgment as to Appellee Ofelia Coronado are DENIED.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Hedrick seeks damages, claiming defendants violated his

constitutional rights, resulting in his conviction. The district

court correctly ruled that this action challenges Hedrick’s

underlying conviction and is, therefore, barred under Heck v.

Humphrey,

(1994) (plaintiff may not recover

damages for claimed unconstitutional imprisonment absent showing

conviction or sentence has been reversed or invalidated by state

court or called into question by issuance of federal habeas

relief).

Hedrick also maintains the district court should not have

dismissed his action prior to ruling on his pending § 2254

petition. However, in providing that a § 1983 claim does not

accrue until a conviction is reversed or otherwise called into

question, Heck clearly contemplates that dismissals may occur while

post-conviction challenges are pending. Heck,

(“no cause of action [exists] under § 1983 unless and until the

conviction or sentence is reversed, expunged, invalidated, or

impugned by the grant of a writ of habeas corpus”).

With respect to Coronado, the district court properly

considered sua sponte the claims against her, despite both her

failure to answer the complaint and the lack of any discovery.

See

(e)(2)(B)(ii); Bazrowx v. Scott,

(5th Cir.) (district court may dismiss § 1983 action sua

sponte if action does not state claim and if procedure employed is

fair), cert denied,

(1998). The court concluded that

Coronado was not liable under § 1983 because she was not a state

2 actor. We need not reach that issue because, even if she were,

Hedrick’s claims against her would be barred under Heck. See Berry

v. Brady,

(5th Cir. 1999) (appeals court may

affirm dismissal for failure to state claim on any basis supported

by record).

Finally Hedrick contends that the magistrate judge erred in

denying him an evidentiary hearing on his motion to suppress

certain evidence. He did not appeal the denial to the district

court; therefore, this court has no jurisdiction. See Colburn v.

Bunge Towing, Inc.,

(5th Cir. 1989).

JUDGMENT AFFIRMED; MOTIONS DENIED

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