* This order and judgment is not binding precedent, e xcept under the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

### SEP 8 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

STEVEN R. MUELLER,

Plaintiff-Appellant,

v. JEANNIE WARK, ROBERT HAINLINE, DENNIS MALLOT, BILL FINKE, MARILYN SCAFE, KANSAS PAROLE BOARD, THE STATE OF KANSAS, NAVONNE EASTER, KEN REIN, JOHN LAMB, CHARLES E. SIMMONS, MICAH A. ROSS, KANSAS DEPARTMENT OF CORRECTIONS,

Defendants-Appellees. No. 97-3348 (D.C. No. 96-3346-GTV) (D. Kan.)

ORDER AND JUDGMENT *

Before ANDERSON , BARRETT , and TACHA , Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals from the dismissal, without preju dice, of his civil rights complaint prior to service. He also appeals from the denial of his motion to amend the complaint to cure the identified deficien cies. We review the dismissal de novo, see Brumark Corp. v. Samson Resources Corp. , 57 F.3d 941, 944 (10th Cir. 1995), the denial of amendment for abuse of discretion, see Manning v. United States , 146 F.3d 808, 812 (10th Cir. 1998), and affirm. Seeking damages and declaratory relief under 42 U.S .C. § 1983 and several tort theories, plaintiff pleaded numerous objection s to state procedures which had led to the revocation of his parole. The district court reviewed the complaint and concluded that it ran afoul of the principles set forth in Heck v. Humphrey , 512 U.S. 477 (1994): [I]n order to recover damages for allegedly unconst itutional conviction or imprisonment, or for other harm caused by actions w hose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reve rsed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into questionby a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 22 54. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the distri ct court must consider1 Since plaintiff’s § 1983 claims are not cognizable and, thus, could not

support federal court jurisdiction, see White , 121 F.3d at 806 n.2, his pendent state claims also had to be dismissed, for lack of supplemental jurisdiction. See Nowak v. Ironworkers Local 6 Pension Fund , 81 F.3d 1182, 1188 (2d Cir. 1996); Bailey v. Johnson , 48 F.3d 965, 968 (6th Cir. 1995); see also Alexander v. Anheuser-Busch Cos. , 990 F.2d 536, 540 (10th Cir. 1993). -3- whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it wou ld, the complaint must be dismissed unless the plaintiff can demonstrate thatthe conviction or sentence has already been invalidated. Id. at 486-87 (footnote omitted). These principles al so apply “to proceedings that call into question the fact or duration of parole,” Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996), whether damages or declaratory relief is sought, see White v. Gittens , 121 F.3d 803, 807 n.3 (1st Cir. 1997). We agree with the district court that “plaintiff’s allegations of error [in his parole revocation proceedings] would implicate the validity of his continued confinement,” and, thus, his § 1983 claims must be dismissed under Heck

. 1 District Court Order filed Nov. 4, 1996. While som e claims are nominally directed at events other than the ultimate decision to revoke parole, all implicate the validity of that decision. For example, plaint iff objects to his arrest and detention for parole violation, but his objection-- that his infraction was minor, mistaken, or excusable--clearly also calls into que stion the decision finding and disciplining that infraction. Likewise, claims of mishandling exculpatory and inculpatory evidence, improper ex parte communicati ons, and various due process-4-

violations are all, in substance, challenges to the evidentiary basis and procedure underlying and leading to the revocation of parole. Finally, the complaint contains one allegation alluding to additional, app arently unrelated constitutional violations regarding “conditions of confinement” an d “deliberate indifference,” but this is done in such a generalized and concluso ry fashion that no claim for relief is even remotely stated. Plaintiff’s motion to amend did not cure the defici encies. His response to the application of Heck just reflected his continued misunderstanding of the focus of that case, which is on the legal implications of the objections raised, not the relief sought, in the § 1983 action. As for the nebulous prison-conditionclaims, he offered only the bald assurance that the “amende d complaint will contain a proper presentation of those claims,” without any f actual detail or explanation as to how, or even if, this could be done. MemorandumBrief in Support of Motion to Amend Judgment and Complaint at 12-13. Further, he admitted “inclusion of these claims will necessarily require the addition of newly named defendants,” id. at 12, conceded he “would quite naturally not seek relation back [of] these newly defined claims for relief,” id. , and stated “no statute of limitations problems ex ist for these claims,” id. at 13. In short, he essentially assured the courtthere was no legal or practical necessity to interject these cla ims, whatever they might be, into this already terminated litigation. Under the circ umstances, the district court did-5-

not abuse its discretion in refusing to vacate its prior judgment to permit the proposed, but still unseen and unspecified, amendme nt. The judgment of the United States District Court fo r the District of Kansas is AFFIRMED.

Entered for the Court

Deanell Reece Tacha Circuit Judge