United States Court of Appeals FOR THE EIGHTH CIRCUIT ___________ No. 03-2594 ___________ James E. Sherrod, * * Appellant, * * v. * Appeal from the United States * District Court for the State of Nebraska; Don Stenberg; * District of Nebraska.

Nebraska State Patrol; Lancaster * [UNPUBLISHED] County Attorney’s Office; Lincoln * Police Department; Mark Funkhouser, * Nebraska State Patrol; Jack Wyant; * Nebraska State Penitentiary; Joe Kelly; * Jane Khress; Pam Fittje; Harold W. * Clarke, * * Appellees. * ___________ Submitted: January 7, 2004 Filed: January 15, 2004 ___________ Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges. ___________ PER CURIAM.

Nebraska inmate James Sherrod brought this 42 U.S.C. § 1983 action alleging that defendants lost evidence which, if DNA-tested, would have exonerated him of a rape for which he was convicted. He sought damages and release from prison. The district court1 dismissed the complaint for failure to state a claim, and Sherrod appeals. Upon de novo review, see Breedlove v. Earthgrains Baking Cos., 140 F.3d 797, 799 (8th Cir.), cert. denied, 525 U.S. 921 (1998), we agree with the district court that Sherrod failed to state a claim under section 1983, see Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Daniels v. Williams, 474 U.S. 327, 330-31 (1986); Preiser v. Rodriguez, 411 U.S. 475, 490 (1973).

Accordingly, the judgment is affirmed. See 8th Cir. R. 47B. ______________________________

The Honorable Richard G. Kopf, Chief Judge, United States District Court for the District of Nebraska.

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