* This order and judgment is not binding precedent, e xcept under the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 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, th is panel has determined unanimously that oral argument would not materiallyassist the determination of1 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics ,

403 U.S. 388 (1971). -2- this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he 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 sever al charges. He contends that Webb and the FBI, which allegedly ratified and cond oned the testimony, thereby intentionally and negligently violated his constitu tional rights, and he seeks relief pursuant to Bivens 1 and the Federal Tort Claims Act. On defendants’ m otion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the d istrict 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 t he 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 notbeen 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 defe ndants’ motion and dismissed the case.-3-

On appeal, Plotner challenges the district court’s determinations that Heck barred his claims against Webb and that Webb was en titled 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 Pl otner’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