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

### AUG 12 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

STEVEN ROY FRENCH,

Plaintiff - Appellant,

v. No. 04-1094 ADAMS COUNTY DETENTION CENTER; DOUGLAS N. DARR, Sheriff; JOHN DOE, Parole Supervisor; JANET RUSSELL, Parole Officer, Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

(D.C. NO. 03-Z-1953)

Submitted on the brief: Steven Roy French, pro se.

Before TACHA , Chief Judge, BRISCOE , and HARTZ , Circuit Judges.

HARTZ , Circuit Judge.
Plaintiff Steven Roy French, an inmate of the Oklah oma State Reformatory who is proceeding pro se and in forma pauperis, app eals the district court’s1 After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist 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. -2- dismissal of his civil rights complaint. See 28 U.S.C. §§ 1915(e)(2)(B) (district court shall dismiss prisoner in forma pauperis comp laint if it is frivolous or fails to state a proper claim); 1915A(b)(1) (district cou rt shall screen prisoner civil actions against governmental entity or employer and dismiss if it is frivolous or fails to state a proper claim). We have jurisdicti on under 28 U.S.C. § 1291, and

reverse. 1 In determining whether dismissal is proper, we acce pt the allegations in the complaint as true and construe those allegations an d any reasonable inferences therefrom in the light most favorable to Plaintiff. See Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 806 (10th Cir. 1999). Also, becaus e Plaintiff proceeds pro se, we liberally construe his complaint. Id. The gist of Plaintiff’s complaint under 42 U.S.C. § 1983 is that he was denied an attorney and a court appearance while hel d in jail for 73 days on an alleged parole violation. Plaintiff had been convi cted in Oklahoma but was serving his parole in Colorado under an interstate compact with Oklahoma. As a condition of parole he was required to submit to dr ug screening. On November 13, 2001, Plaintiff’s parole officer calle d him to her office, where she-3-

accused him of having “flushed” his system to remov e drugs from his urine. He was then arrested for violating his parole. He was confined for 73 days in the Adams County Det ention Center while awaiting extradition to Oklahoma for parole revocat ion proceedings. During that time he was not afforded a hearing and his requests to meet with an attorney were denied. Nor was he informed of the specific basis for his continued incarceration. At some point Plaintiff sent a letter to the local public defender, who procured his release. The district court dismissed Plaintiff’s complaint, reasoning that “[Plaintiff’s] challenge to the failure of Defendan ts to release a parole hold, if successful, necessarily would imply the invalidity of his incarceration and, therefore, is not cognizable under 42 U.S.C. § 1983 .” R. Doc. 18 at 2. The court relied on Heck v. Humphrey , 512 U.S. 477, 486-87 (1994), which held that “in order to recover damages for allegedly unconstituti onal conviction or imprisonment, or for other harm caused by actions w hose unlawfulness would render a conviction or sentence invalid, a § 1983 p laintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authori zed to make such determination, or called into question by a federal court’s issuan ce of a writ of habeas corpus . . . .” Heckalso stated, however, that “if the district court determines that the-4-

plaintiff’s action, even if successful, will **not**demonstrate the invalidity of any outstanding criminal judgment against the plaintiff , the action should be allowed to proceed. . . .” Id. at 487; see Spencer v. Kemna , 523 U.S. 1, 17 (1998) (“If, for example, petitioner were to seek damages for using the wrong procedures, not for reaching the wrong result, and if that procedural d efect did not necessarily imply the invalidity of the revocation, then Heck would have no application [at] all.” (internal quotation marks and citations omitted)). We fail to see how success by Plaintiff on his clai ms that he was denied counsel and a court appearance would “demonstrate t he invalidity of any outstanding criminal judgment against the plaintiff.” Heck , 512 U.S. at 487. Indeed, the record does not even indicate whether p arole was ever revoked on the ground that led to the incarceration in question. And nothing in the record suggests that his damages claim would be inconsiste nt with a proper parole revocation. See generally Dotson v. Wilkinson , 329 F.3d 463 (6th Cir. 2003) (en banc), cert. granted , 124 S. Ct. 1652 (U.S. Mar. 22, 2004) (No. 03-287) (discussing decisions in the various circuits relat ing to application of Heckto parole release and revocation). The district court therefore erred in applying Heckto dismiss the complaint. We need not determine w hether there are any other proper grounds for dismissal.-5-

The dismissal of Plaintiff’s complaint is REVERSED and the case is REMANDED to the district court for proceedings cons istent with this opinion. Plaintiff’s motion to proceed without prepayment of appellate filing fees is GRANTED. Plaintiff is reminded that he remains obl igated to make partial payments of the costs and fees associated with this appeal under 28 U.S.C. § 1915(b)(1).