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

unanimously that oral argument would not be of material assistance in the

determination of these appeals. See Fed. R. App. P. 34(a) and 10th Cir. R. 34.1.9. 

The case is therefore ordered submitted without oral argument.

** This order and judgment is not binding precedent, except under the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 8 1997

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

KENT L. MECHAM,

Plaintiff-Appellant,

v.

DONNA TAYLOR, Supervising

Agent; and STUART MCCIVER,

Defendants-Appellees.

_______________________________

KENT L. MECHAM,

Plaintiff-Appellant,

v. 

LARRY A. KELLY, Hearing Officer;

and MICK SPILKER, Supervising

Agent,

 Defendants-Appellees.

No. 96-4143

(D.C. No. 95-CV-984W)

(Dist. of Utah)

No. 96-4178

(D.C. No. 95-CV-1030C)

(Dist. of Utah)

ORDER AND JUDGMENT* **

Before BRORBY, EBEL and KELLY, Circuit Judges.
1At the time that Mecham filed these actions, a district court within its

discretion could dismiss a complaint filed in forma pauperis if the court found the

action to be frivolous. 28 U.S.C. § 1915(d) (1994) (amended Apr. 26, 1996,

Pub.L. 104-134). After the actions were commenced, but before Mecham filed

these appeals, section 1915 was amended to require a court sua sponte to dismiss

an action--or an appeal--filed in forma pauperis if the action or appeal "(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted;

or (iii) seeks monetary relief against a defendant who is immune from such

relief." 28 U.S.C. § 1915(e)(2)(B) (Supp. 1997). These appeals were filed in

forma pauperis. Thus, we apply the stricter standard of the revised statute in

deciding whether to dismiss them. 

- 2 -

Plaintiff-Appellant Kent L. Mecham filed suit under 42 U.S.C. §§ 1983 and

1985 alleging that the defendants, Donna Taylor, Stuart McCiver and John Does

1-10, members of the Utah Department of Corrections, falsified information in

order to find probable cause that Mecham violated his parole. Mecham filed a

separate suit under 42 U.S.C. § 1983 alleging that defendants Larry A. Kelly,

Mick Spilker and John Does 1-10, also members of the Utah Department of

Corrections, failed to release him from prison after they were informed that he

had not received notice of his parole prerevocation hearing. Mecham filed both

actions pro se and in forma pauperis. 

Both actions were dismissed under 28 U.S.C. 1915(d) as frivolous.1

 A

claim is frivolous if it lacks an arguable basis for relief in either fact or law. 

Neitzke v. Williams, 490 U.S. 319, 325 (1989). Mecham now appeals. Because
- 3 -

the cases involve similar legal issues, we have consolidated them for purposes of

appeal.

Case No. 96-4143 

In his complaint in Case No. 96-4143, Mecham claims that Parol Agent

Taylor falsified information in her warrant request and parole violation report. 

Specifically, Mecham asserts that Taylor reported that Mecham violated his

curfew and failed to report in, when in fact, Taylor gave Mecham permission to

be out past curfew and not to report in. According to Mecham, Taylor admitted at

the prerevocation hearing that she had given Taylor permission to be out past

curfew and not to report. Mecham's claim against McCiver is based on McCiver's

inclusion of the false information in a prerevocation hearing report finding

probable cause that Mecham violated his parole. Mecham asserts that when the

facts were presented to the Utah Board of Pardons he was "released immediately." 

 Mecham seeks damages of one thousand dollars a day for every day that he

was illegally incarcerated and compensation for loss of wages and loss of

freedom. He also seeks mental health treatment for the suffering he endured in

prison and for being unable to spend time with his mother who has cancer.

In his Report and Recommendation of 12/4/95, Magistrate Judge Ronald

Boyce recommended dismissal of the § 1985 claim because no racial animus was

alleged. Bisbee v. Bey, 39 F.3d 1096, 1102 (10th Cir. 1994), cert. denied, 115 S.
- 4 -

Ct. 2577 (1995). He recommended dismissal of the action as to the John Doe

defendants because the plaintiff failed to allege any wrongdoing on the part of

those defendants. Langley v. Adams County, 987 F.2d 1473, 1481 (10th Cir.

1993). The district court issued an order in accordance with the magistrate's

recommendations. We review a district court's determination that an action

brought in forma pauperis is frivolous for abuse of discretion. Malek v. Haun, 26

F.3d 1013, 1015 (10th Cir. 1994). Finding no abuse of discretion with regard to

the above claims, we affirm.

We are, however, unable to affirm the district court's dismissal of the

section 1983 claims against Taylor and McCiver. The magistrate recommended

dismissing those claims on several grounds. First, the magistrate found that the

claims were barred under Heck v. Humphrey, 114 S. Ct. 2364 (1994). In Heck,

the Supreme Court held that a plaintiff is barred from bringing a section 1983

action for damages based on an unconstitutional imprisonment unless the

underlying conviction or sentence has been invalidated. Id. at 2372. We have

held that Heck "applies to proceedings that call into question the fact or duration

of parole or probation." Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). 

Neither the magistrate nor the court took notice of Mecham's claim that the Board

of Pardons released him after holding its own hearing. The precondition for suit

mandated by Heck, invalidation of Mecham's parole revocation, is alleged in
- 5 -

Mecham's complaint as well as in his objection to the magistrate's Report and

Recommendation. It is an abuse of discretion to dismiss Mecham's complaint as

frivolous under Heck unless and until such allegation is proven false.

The court further dismissed the claims against McCiver on the ground that

he is protected by absolute immunity. We review de novo the legal question of

whether a defendant possesses immunity. Wilson v. Meeks, 52 F.3d 1547, 1551

(10th Cir. 1995) The magistrate found, and the district court agreed, that "to the

extent plaintiff is asserting a claim against parole board member McCiver for

finding probable cause to revoke plaintiff's probation, a member of the Utah

Board of Pardons is absolutely immune from a damage suit for actions taken in

performance of the Board's official duties." Magistrate's Report and

Recommendation at 2 (citing Malek v. Haun, 26 F.3d 1013, 1015 (10th Cir.

1994)). The problem with this recommendation is that Mecham alleges in his

complaint and in his response to the magistrate's Report and Recommendation

that McCiver is a member of the board of corrections not the board of pardons

and that the action was not in furtherance of the board of pardon's duties, but a

preliminary step taken by the corrections department. Under Utah law, a finding

of probable cause to revoke parole is made by a member of the board of

corrections before the board of pardons holds a hearing. See U.C.A. 77-27-11(3). 

Thus, Malek does not govern this case. Rather, it appears to be governed by cases
- 6 -

such as Russ v. Uppah, 972 F.2d 300 (10th Cir. 1992), and Mee v. Ortega, 967

F.2d 423 (10th Cir. 1992), which hold that decisions of parole officers involving

the revocation of parole warrant only qualified, not absolute, immunity. If

McCiver knowingly included false information in his report finding probable

cause to revoke Mecham's parole, he would not be protected by qualified

immunity. See Russ, 972 F.2d at 303-04 (parole officer who intentionally

presents false information in parole revocation process not protected by qualified

immunity). However, the record is not well developed regarding McCiver’s

precise role or whether he might have any other claims for absolute immunity. 

Accordingly, that matter should further be addressed by the district court on

remand. 

 Additionally, the magistrate recommended dismissing the claim that Taylor

gave false testimony at the parole revocation hearing, finding that parole officers

have absolute immunity for testimonial evidence given at parole hearings. 

Magistrate's Report and Recommendation at 3. We held in Russ that parole

officers possess only qualified immunity for testimony given at a parole

revocation hearing and that an officer who knowingly lies during a parole

revocation hearing is not protected from suit. See id. at 303. Further, Taylor

possesses only qualified immunity in relation to her preparation of a warrant

request and parole violation report, which does not shield her from a claim of
- 7 -

knowingly falsifying information in those documents, as discussed above. See

also Wilson v. Kelkhoff, 86 F.3d 1438 (7th Cir. 1996) (parole officer's filing of

parole violation report protected only by qualified immunity). Accord Jones v.

Moore, 986 F.2d 251, 253 (8th Cir. 1993). 

For the reasons set out above, we AFFIRM the district court order

dismissing as frivolous the section 1985 claims and the claims against John Does

1-10. However, we REVERSE the order dismissing the section 1983 claims

against Taylor and McCiver as frivolous and REMAND to the district court for

further proceedings in conformance with this decision. 

Case No. 96-4178

In his complaint in Case No. 96-4178, Mecham alleges that the defendants

failed to release him after being notified that he had not received prior notice of

his prerevocation hearing. In his Report and Recommendation of 1/9/96,

Magistrate Judge Samuel Alba recommended dismissing the action as to the John

Doe defendants because the plaintiff failed to allege any wrongdoing on the part

of those defendants. Langley v. Adams County, 987 F.2d 1473, 1481 (10th Cir.

1993). He recommended dismissing the action as to the other defendants because
2

In his appeal, Mecham claims he was prejudiced by being unable to notify

his witnesses. However, Mecham did not raise this argument below in his

complaint or in his response to the magistrate's Report and Recommendation. 

Thus, we will not consider it on appeal. In re Walker, 959 F.2d 894, 896 (10th

Cir. 1992). 

3The magistrate recommended additionally that the claim against Kelly be

dismissed because "a member of the Utah Board of Pardons is absolutely immune

from a damage suit for actions taken in performance of the Board's official

duties." Report and Recommendation of 1/9/96 at 2 (citing Malek v. Haun, 26

F.3d 1013, 1015 (10th Cir. 1994)). As in Case No. 96-4143, it appears that Kelly

is not a member of the board of pardons, but rather, an officer in the department

of corrections, entitled to only qualified immunity. However, because of our

disposition of this appeal we need not decide whether, given the allegations in the

complaint, Kelly would be protected by qualified immunity. 

4On February 4, 1997, we issued an order directing the plaintiff to make

partial payments toward the filing fee for this appeal, as required by the Prison

Litigation Reform Act, 28 U.S.C. § 1915(b)(1). As of April 2, 1997, we had not

received any payments, although the average balance in plaintiff's prison account

was $24.06 in the six months preceding the appeal. Therefore, on that date we

issued an Order to Show Cause directing the plaintiff and his custodian to show

cause why the appeal was not subject to dismissal. In response, the prison has

sent documentation of three partial payments made by Mecham toward the filing

fee. Therefore, we herein discharge the Order to Show Cause. 

- 8 -

the plaintiff failed to show that he was prejudiced by the lack of notice.2

 See

Miller v. Federal Bureau of Prisons, 989 F.2d 420 (10th Cir. 1993). The district

court issued an order in accordance with the magistrate's recommendations. 

Finding no abuse of discretion with regard to the above claims, we AFFIRM.3 

4

Conclusion

With regard to Case No. 96-4143, we AFFIRM the district court order

dismissing as frivolous the section 1985 claims and the claims against John Does
- 9 -

1-10. We REVERSE the order dismissing the section 1983 claims against Taylor

and McCiver as frivolous and REMAND to the district court for further

proceedings in conformance with this decision. 

With regard to Case No. 96-4178, we AFFIRM the district court order

dismissing as frivolous the section 1983 claims against all defendants and

DISCHARGE the Order to Show Cause issued on April 2, 1997. 

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge