* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 3 2001 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
WILLIAM MCNALLY,

Plaintiff-Appellant,

v. COLORADO STATE PATROL, COLONEL LONNIE J. WESTPHAL, MAJOR GUY F. KING, CAPTAIN STEVE MYERS, TROOPER C.D. BALNSCET, TROOPER WILLIAM DREW HERRINGTON and TROOPER ROBERT KLADDE, all in their individual and professional capacities, Defendants-Appellees. No. 00-1254 (D.C. No. 99-B-1564) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , ANDERSON , and KELLY , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. Plaintiff William McNally brought suit in the Unite d States District Court for the District of Colorado pursuant to 42 U.S.C. § 1983 for alleged constitutional violations arising from his arrest and subsequent trial and conviction. As federal claims, plaintiff alleged that he was the victim of an illegal stop, search and seizure, received no Miranda warning, was falsely arrested and imprisoned, was subjected to an unfairtrial, was maliciously prosecuted, and that defendant Colorado State Patro l failed to train and supervise its officers. Plaintiff also asserted various stat e law tort claims. The case was transferred to a United States magistr ate judge who recommended that defendants’ motion to dismiss be g ranted. The district court approved the recommendation of the magistrate judge and dismissed the action in its entirety. On appeal, plaintiff urges the same issues he raised in the district court. We have studied the briefs of the parties, the record on appeal, and the applicable law and, with the following modi fication, we affirm for substantially the reasons stated by the district co urt.1 To the extent plaintiff advanced a claim for false imprisonment

post-conviction, such claim, if not barred by the s tatute of limitations, would be similarly precluded by Heck. -3- Among the claims dismissed by the district court we re plaintiff’s allegations of denial of fair trial and malicious p rosecution. The court correctly held that these claims could not be brought under § 1983 until plaintiff could prove that the underlying convictions had been overturned by a competent state authority. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994). 1 In this situation, and contrary to the treatment by the dis trict court, claims barred by Heck are to be dismissed without prejudice. Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996). We direct the distric t court to modify its judgment to reflect the proper standard. As a final matter, plaintiff attempts to introduce evidence for the first time on appeal regarding the status of his convicti ons. This court, however, will not review documents not before the district c ourt when the ruling appealed from was made. Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545, 1549 n.1 (10th Cir. 1992). Plaintiff’s “Motion to Add Exhibit” is therefore DENIED.-4-

We AFFIRM the district court but REMAND with direct ions to MODIFY the judgment to reflect that plaintiff’s claims, wh ich are heretofore barred by Heck v. Humphrey , are dismissed without prejudice. The mandate sha ll issue forthwith.
Entered for the Court

Paul J. Kelly, Jr. Circuit Judge