ALD

- 067 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 3331

___________ DERRICK M c KINNEY ,

Appellant

v. PENNSYLVANIA BOARD OF PROBATION & PAROLE; PENNSYLVANIA DEPARTMENT OF CORRECTION S; CITY OF PHILADELPHIA COUNTY; CITY OF MONTGOMERY COUNTY; CITY OF CUMBERLAND COUNTY; JOHN/JANE DOE(S)

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 09

- cv
- 03679) District Judge: Honorable Timothy J. Savage

____________________________________ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

December 16, 2010 Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Jud ges

( Filed : December 23, 2010 )

_________ OPINION OF THE COURT

_________ PER CURIAM

. Derrick McKinney , proceeding pro se and in forma pauperis , filed a complaint

pursu ant to 42 U.S.C. § 1983 claiming that he had been imprisoned beyond th e maximum2

terms of his sentences for state convictions and a parole violation. He also alleged that

some of the defendants violated his due process and other constitutional rights by incorrectly calc ulating his maximum sentence and by failing to conduct a p arole revocation or parole hearing when they revoked his parole and continued to detain him

. He sought declaratory relief and monetary damages against the defendants (although he did not request monetary relief from all the defendants).

Four of the f

ive named defendants filed motions to dismiss the complaint. The District Court granted the motions and dismissed the complaint in its entirety. McKinney appeals. We notified McKinney that we planned to consider his appeal for possible summary action. In response, McKinney retained counsel. Through his counsel, McKinney presents a motion to remand this matter to the District Court with leave to

amend or re

- file against the appropriate parties. He states that with the assistance of counsel, he will f

ile his complaint against the appropriate parties and “ cure any and all procedural defects that prevented [his] action from proceeding.” Several of the

defendants/ appellees oppose McKinney’s motion

. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

Lum v. Bank of Am. , 361 F.3d 217, 223 (3d Cir. 2004); Allah v. Seiverling , 229 F.3d 220, 223 ( 3d Cir. 2000). On review, we will summarily affirm the District Court’s judgment because no substantial issue is presented on appeal. S ee L.A.R. 27.4; I.O.P. 10.6; see also Erie Telecomms. v. Erie , 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that3

we may affirm on an alternative basis supported by the record). The District Court properly dismissed McKinney’s complaint . McKinney’s action

is barred by the doctrine of Heck v. Humphrey , 512 U.S. 477 (1994) , because success on his claims would necessarily imply the invalidity of the fact and the duration of his state confinement, which have not been elsewhere invalidated. Absent the prior in validation of a state confinement, a § 1983 action for damages or equitable relief is unavailable if success in that action would imply the invalidity of the fact or duration of the

confinement. See Wilkinson v. Dotson , 544 U.S. 74, 78 (2005) ; see also Pr eiser v. Rodriguez , 411 U.S. 475, 500 (1973) (stating that “when a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier relea se from that imprisonment, his sole federal reme dy is a writ of habeas corpus”); Williams v. Consovoy , 453 F.3d 173, 177 (3d Cir. 2006) (holding that where success in a § 1983 action would imply the invalidity of a decision to revoke parole that has not be en otherwise rendered invalid , the action is Heck

- barred) ; cf. Edwards v. Balisok , 520 U.S. 641, 646

- 48 (1997) (holding that a prisoner did not present a claim that was cognizable under 42 U.S.C. § 1983 when he sought a declaration that the procedures used by prison officials at his hearing to revoke good time credits violated his right to due process)

. Despite dismissing what was nominally a pro se civil rights complaint in part on the defendants’ motions and in part sua sponte , t he District Court did not consider whether McKinney should have been afforded leave to amend. However, we conclude4

the District Court committed no error because amendment would be futile. See Grayson v. Mayview State Hos p. , 293 F.3d 103, 114 (3d Cir. 2002) . Although McKinney ar gues on appeal that he could file his claims against the proper parties and correct procedural problems if he were permitted to remand, he simply cannot bring his habeas claims in a §

1983 action. Accordingly, we deny McKinney’s motion to remand , and we w ill affirm the District Court’s judgment.