* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 10 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

RALPH E. PLOTNER, JR.,

an individual,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA,

by and through Louis J. Freeh,

Director of the Federal Bureau of

Investigation; ROBERT F. WEBB,

individually; ROBERT F. WEBB,

an employee and representative of

the Federal Bureau of Investigation,

a United States Agency,

Defendants-Appellees.

No. 00-6422

(D.C. No. 00-CV-1188-T)

(W.D. Okla.)

ORDER AND JUDGMENT *

Before EBEL , PORFILIO , and KELLY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of
1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics ,

403 U.S. 388 (1971).

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this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Plaintiff Ralph E. Plotner, Jr. brought this action based on his allegation

that false testimony by Federal Bureau of Investigation agent Robert Webb at his

1984 criminal trial led to his convictions on several charges. He contends that

Webb and the FBI, which allegedly ratified and condoned the testimony, thereby

intentionally and negligently violated his constitutional rights, and he seeks relief

pursuant to Bivens 1

 and the Federal Tort Claims Act. On defendants’ motion to

dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the district court determined that

sovereign immunity barred Plotner’s claims against the government and against

Webb in his official capacity. It also found that Plotner’s claims against Webb

in his individual capacity necessarily challenged the validity of his criminal

convictions, and that these claims were barred by Heck v. Humphrey , 512 U.S.

477, 486-87 (1994), because the convictions had not been invalidated. 

Alternatively, it held that the claims against Webb failed on the basis of absolute

immunity for testifying witnesses. See Miller v. Glanz , 948 F.2d 1562, 1570-71

(10th Cir. 1991). The court therefore granted defendants’ motion and

dismissed the case.
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On appeal, Plotner challenges the district court’s determinations that Heck

barred his claims against Webb and that Webb was entitled to absolute immunity. 

We review de novo a dismissal pursuant to Rule 12(b)(6), accepting all

well-pleaded facts as true and viewing them in the light most favorable to the

nonmoving party. Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226,

1236 (10th Cir. 1999). We have fully considered Plotner’s arguments and

reviewed the record, and conclude the district court did not err in dismissing

the case for failure to state a claim. Therefore, for substantially the same reasons

as stated in the district court’s November 20, 2000 order, we AFFIRM the

judgment of the district court.

Entered for the Court

John C. Porfilio

Circuit Judge