*Pursuant to 5th Cir. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5th Cir. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20459

Summary Calendar

 

ROBERT JAMES BARNETT,

Plaintiff-Appellant,

versus

THE UNITED STATES SECRET SERVICE;

ELIZABETH HUERTA; BOB ROBERTS,

Defendants-Appellees.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-96-CV-3884

_______________________________________________________________

June 18, 1999

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

Robert James Barnett, Texas prisoner # 314835, appeals the

district court’s dismissal of his claims brought under 42 U.S.C.

§ 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). The same substantive standards of

constitutional violations apply to claims in a Bivens action as to

a cause under § 1983. See Carlson v. Green, 446 U.S. 14, 19 (1980)

(approving Eighth Amendment Bivens claim). The district court may

dismiss an in forma pauperis (“IFP”) complaint as frivolous at any

time if it lacks an arguable basis in law or fact. See
2

§ 1915(e)(2)(B)(i); see Siglar v. Hightower, 112 F.3d 191, 193 (5th

Cir. 1997). The court reviews the dismissal of an IFP complaint as

frivolous for an abuse of discretion. Id.

The district court held that Barnett’s claims against the

United States Secret Service were barred because Barnett had failed

to show a waiver of sovereign immunity. Because Barnett has failed

to challenge this issue on direct appeal, it is deemed to have been

waived. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).

This dismissal of Barnett’s claims against the United States Secret

Service is AFFIRMED.

The district court construed all of Barnett’s claims against

the individual defendants as arising out of the proceedings of

Barnett’s parole revocation and held that these claims were barred

under the doctrine of Heck v. Humphrey, 512 U.S. 477, 486 (1994).

Under Heck, a § 1983 plaintiff cannot recover damages for an

unconstitutional conviction or for “harm caused by actions whose

unlawfulness would render a conviction or sentence invalid,” until

he has shown that the conviction or sentence has been “reversed on

direct appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such determination, or called

into question by a federal court’s issuance of a writ of habeas

corpus.” Id. at 486-87. An action attacking the viability of

probation or parole revocation proceedings must satisfy the Heck

element as such an action calls into question the fact and duration

of confinement. See Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir.
3

1995). Barnett concedes that his challenges to the parole

revocation proceedings would call into question the validity of his

incarceration. Therefore, the district court did not abuse its

discretion in dismissing these claims under Heck. The decision of

the district court is AFFIRMED as to these issues.

However, Barnett has also raised claims unrelated to his

parole revocation, involving false arrest, false imprisonment, and

malicious prosecution on counterfeiting charges that were

eventually dropped. If Barnett were to prevail on these issues, it

may not necessarily call into question the validity of his parole

revocation. Compare Wells v. Bonner, 45 F.3d 90, 95 (5th Cir.

1995) (arrest and conviction for resisting a search; arrest cannot

be challenged in a § 1983 cause of action). The district court,

however, did not consider these issues as separate from the parole

revocation proceedings. The judgment of the district court is

therefore VACATED and the case REMANDED for further proceedings

only as to Barnett’s claims arising from his January 31, 1996

arrest.

Barnett’s motion for appointment of counsel is DENIED because

he has not shown extraordinary circumstances. See Cupit v. Jones,

835 F.2d 82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209,

212 (5th Cir. 1982). His related motion to extend the time for

filing an appeal is also DENIED.

AFFIRMED in part; VACATED and REMANDED in part;

MOTIONS DENIED.