Crow v. Penry

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 17, 1996
• Docket: 95-1216
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse 1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk

January 15, 1997

TO: All recipients of the captioned opinion

RE: No. 95-1216, Crow v. Penry December 17, 1996

Please be advised of the following correction to the captioned decision:

In the second line from the top of page 2 of the opinion, the cite “28 U.S.C.A. § 7401 et seq." is incorrect. The correct cite is: 28 U.S.T. 7399 et seq.

Please make the appropriate correction.

Very truly yours,

Patrick Fisher, Clerk

Susie Tidwell Deputy Clerk PUBLISH

UNITED STATES COURT OF APPEALS Filed 12/17/96 TENTH CIRCUIT

SCOTT R. CROW, ) ) Plaintiff-Appellant, ) ) v. ) No. 95-1216 ) ) DANIEL W. PENRY, et al., ) ) Defendants-Appellees. ) ) )

Appeal from the United States District Court for the District of Colorado (D.C. No. 94-CB-504)

__________

Ross B.H. Buchanan of Buchanan, Jurdem & Zulauf, Denver, Colorado, for Plaintiff- Appellant.

Kathleen L. Torres, Assistant U.S. Attorney, Denver, Colorado, (Henry L. Solano, United States Attorney, and William G. Pharo, Assistant U.S. Attorney, Denver, Colorado, with her on the brief), for Defendants-Appellees. __________

Before TACHA, Circuit Judge, GODBOLD,* and HOLLOWAY, Senior Circuit Judges. __________

* The Honorable John C. Godbold, Senior U.S. Circuit Judge for the Eleventh Circuit, sitting by designation. PER CURIAM:

Appellant Crow was convicted in Mexico of a drug violation. Pursuant to a treaty

with Mexico concerning transfer of prisoners, see 28 U.S.T. 7399 et seq., he was transferred

to a federal institution in the United States to serve the remainder of his sentence. Later he

was released on parole and signed a form describing as a condition of parole that he agreed

not to possess firearms. Subsequently, his parole was revoked because he was found to be

in possession of firearms, and he was returned to federal custody.

Crow brought this suit against his probation officer, the Probation Department of the

District Court, and the United States Parole Commission. He contended that there had been

violation of his constitutional rights against unreasonable searches or seizures and due

process of law. He sought damages for his arrest as a parole violator and his subsequent

incarceration, the revocation of his parole and the ensuing additional period of incarceration.

He asserted a § 1983 Bivens claim and a pendant state claim for common law abuse of

process. He alleged that his probation officer (and a predecessor officer) had failed to advise

him, or had misadvised him, concerning whether, as a person convicted of felony in Mexico,

he was forbidden to possess firearms. He contended that the defendants had made false

statements in connection with his parole violation warrant and a search warrant of his

premises that had turned up weapons.

In a motion to dismiss hearing counsel for Crow indicated his intention to file an

amended complaint under the Federal Tort Claims Act to substitute for the pendant state

2 claim. No amendment was ever filed. The district court dismissed the claim against the

Probation Department and Parole Commission and the claim against the probation officer in

his official capacity on sovereign immunity grounds.

The pendant state claim for abuse of process was held to be barred by sovereign

immunity, which has not been waived by 28 U.S.C.A. § 2679(B)(1), because a probation

officer is not a law enforcement officer within that section. Wilson v. U. S., 959 F.2d 12 (2d

Cir. 1992). Although no federal tort claim had been filed, the court noted that Crow had not

timely exhausted his administrative remedies as required for such a claim by 28 U.S.C.A. §

2675.

Some four months after the district court entered its order dismissing the complaint,

Crow filed a motion for leave to file an amended complaint. The court dismissed it as

untimely and unjustified. Crow seeks to appeal from the order dismissing his complaint and

the order denying his motion for leave to file an amended complaint.

Crow's appeal fails for many reasons. His § 1983 claim is barred by Heck v.

Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994), which held that to recover damages for an

unconstitutional conviction or imprisonment a § 1983 plaintiff must prove that the conviction

or sentence has been reversed on direct appeal, expunged by executive order, declared invalid

by an authorized state tribunal, or called into question by a federal court's issuance of a writ

of habeas corpus. Heck applies to Bivens actions. Stephenson v. Reno, 28 F.3d 26 (5th Cir.

3 1994). It applies to proceedings that call into question the fact or duration of parole or

probation. Jackson v. Vannoy, 49 F.3d 175 (5th Cir.), cert. denied, 116 S.Ct. 148 (1995).

Crow's claim necessarily implies the invalidity of his parole revocation. He alleges

that the probation officer and others conspired to have the search and arrest warrants issued

and that the probation officer falsely testified at his probation revocation hearing. The civil

claim for damages amounts to a collateral attack on his parole revocation and subsequent

incarceration. Heck does not permit this.

With respect to Crow's arguments concerning the Federal Tort Claims Act the court

did not err in denying his untimely motion for leave to file an amended complaint to reframe

his complaint to allege a claim under that Act. The amendment was never filed, so there is

not before us for review the comment by the district court in its motion to dismiss order that

Crow had failed to exhaust the administrative remedies required as a prerequisite to suit

under the Act.

There is no merit to other contentions by the plaintiff.

The decision of the district court is AFFIRMED.