UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TERRY LEE MARGHEIM,

Plaintiff - Appellant,

No. 97-1378
v.	(D. Colorado)
J. D. PYATT, JEFF FRENCH, DONNA THURLOW, Officials of the Colorado Department of Corrections; and Unknown Officials of the Colorado Department of Corrections,

Defendants - Appellees.	(D.C. No. 97-D-1154)

ORDER AND JUDGMENT *

Before ANDERSON, McKAY, and LUCERO, Circuit Judges.

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.

Terry Lee Margheim, a state prisoner appearing pro se, appeals a district court order denying his motion for relief from the district court's dismissal, without prejudice, of his civil rights action brought pursuant to 42 U.S.C. §§ 1983, 1985(3). 1

After serving time for two separate convictions and being released from prison, Margheim was arrested again after state parole officers conducted a home visit at his residence. Charges were subsequently filed against Margheim, who was convicted and is now serving time for this third conviction. 2 In the purported civil action before us, Margheim alleges that he is "'currently . . . imprisoned due to the actions of various employees of the State of Colorado and the Department of Corrections which were in direct violation of THE U.S. CONSTITUTION and THE CONSTITUTION OF COLORADO,'" R. Vol. I, Tab 6 at 3, and seeks monetary damages for false imprisonment. 3

The problem in this case, as observed by the district court, is that although Margheim has styled his suit as a civil rights action seeking only monetary damages, he is essentially attacking the legality of his conviction and the sentence he is currently serving. In a thorough opinion, the district court pointed out that the Supreme Court has prohibited this approach in Heck v. Humphrey, 512 U.S. 477 (1994). See R. Vol. I, Tab 16 at 2. In Heck, the Court made it clear that

when a state prisoner seeks damages in a § 1983 suit, the district court must consider 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.

Heck, 512 U.S. at 487 ("[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. . . , or called into question by a federal court's issuance of a writ of habeas corpus."). Because Margheim has not challenged his current conviction or sentence, either collaterally or on direct appeal (nor could he pursuant to his plea agreement), the district court did not err in dismissing, without prejudice, Margheim's complaint and in denying his motions to reconsider. 4

AFFIRMED.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge

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