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

unanimously that oral argument would not be of mate rial 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 ora l 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**This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata , and collateral estoppel.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 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 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.1 At the time that Mecham filed these actions, a dist rict court within its

discretion could dismiss a complaint filed in formapauperis 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 standa rd of the revised statute in deciding whether to dismiss them. - 2 - Plaintiff-Appellant Kent L. Mecham filed suit under42 U.S.C. §§ 1983 and 1985 alleging that the defendants, Donna Taylor, St uart McCiver and John Does 1-10, members of the Utah Department of Correction s, falsified information in order to find probable cause that Mecham violated h is 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 th e Utah Department of Corrections, failed to release him from prison afte r 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 fo r relief in either fact or law. Neitzke v. Williams , 490 U.S. 319, 325 (1989). Mecham now appeals. B ecause- 3 -

the cases involve similar legal issues, we have con solidated 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 requestand parole violation report. Specifically, Mecham asserts that Taylor reported t hat Mecham violated his curfew and failed to report in, when in fact, Taylo r 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 Taylorpermission to be out past curfew and not to report. Mecham's claim against M cCiver is based on McCiver's inclusion of the false information in a prerevocati on hearing report finding probable cause that Mecham violated his parole. Me cham asserts that when the facts were presented to the Utah Board of Pardons h e was "released immediately." Mecham seeks damages of one thousand dollars a day for every day that he was illegally incarcerated and compensation for los s of wages and loss of freedom. He also seeks mental health treatment forthe 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, Magist rate Judge Ronald Boyce recommended dismissal of the § 1985 claim bec ause 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 a ction as to the John Doe defendants because the plaintiff failed to allege a ny 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 accor dance with the magistrate's recommendations. We review a district court's dete rmination 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 cour t's dismissal of the section 1983 claims against Taylor and McCiver. Th e 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 f rom bringing a section 1983 action for damages based on an unconstitutional imp risonment unless the underlying conviction or sentence has been invalidated. Id . at 2372. We have held that Heck"applies to proceedings that call into question th e 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 heari ng. The precondition for suit mandated by Heck , invalidation of Mecham's parole revocation, is al leged in- 5 -

Mecham's complaint as well as in his objection to t he magistrate's Report and Recommendation. It is an abuse of discretion to di smiss Mecham's complaint as frivolous under Heckunless and until such allegation is proven false. The court further dismissed the claims against McCi ver 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 dis trict court agreed, that "to the extent plaintiff is asserting a claim against parol e board member McCiver for finding probable cause to revoke plaintiff's probat ion, 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." Magis trate's Report and Recommendation at 2 (citing Malek v. Haun , 26 F.3d 1013, 1015 (10th Cir. 1994)). The problem with this recommendation is th at Mecham alleges in his complaint and in his response to the magistrate's R eport and Recommendation that McCiver is a member of the board of correction s notthe board of pardons and that the action was not in furtherance of the b oard of pardon's duties, but a preliminary step taken by the corrections departmen t. Under Utah law, a finding of probable cause to revoke parole is made by a mem ber of the board of corrections before the board of pardons holds a hea ring. See U.C.A. 77-27-11(3). Thus, Malekdoes 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 decision s of parole officers involving the revocation of parole warrant only qualified, no t absolute, immunity. If McCiver knowingly included false information in his report finding probable cause to revoke Mecham's parole, he would not be pr otected by qualified immunity. See Russ , 972 F.2d at 303-04 (parole officer who intentiona lly presents false information in parole revocation pro cess not protected by qualified immunity). However, the record is not well develop ed regarding McCiver’s precise role or whether he might have any other cla ims for absolute immunity. Accordingly, that matter should further be addresse d by the district court on remand. Additionally, the magistrate recommended dismissin g the claim that Taylor gave false testimony at the parole revocation heari ng, finding that parole officers have absolute immunity for testimonial evidence giv en at parole hearings. Magistrate's Report and Recommendation at 3. We hel d in Russ that parole officers possess only qualified immunity for testim ony given at a parole revocation hearing and that an officer who knowingl y lies during a parole revocation hearing is not protected from suit. See id. at 303. Further, Taylor possesses only qualified immunity in relation to he r preparation of a warrant request and parole violation report, which does notshield 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 fi ling 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 distri ct 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 decisi on.

Case No. 96-4178 In his complaint in Case No. 96-4178, Mecham allege s 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 Recom mendation of 1/9/96, Magistrate Judge Samuel Alba recommended dismissing the action as to the John Doe defendants because the plaintiff failed to alle ge 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 because2 In his appeal, Mecham claims he was prejudiced by b eing unable to notify

his witnesses. However, Mecham did not raise this argument below in his complaint or in his response to the magistrate's Re port and Recommendation. Thus, we will not consider it on appeal. In re Wal ker , 959 F.2d 894, 896 (10th Cir. 1992).

3 The magistrate recommended additionally that the cl aim against Kelly be dismissed because "a member of the Utah Board of Pa rdons 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 wheth er, given the allegations in the complaint, Kelly would be protected by qualified im munity.

4 On February 4, 1997, we issued an order directing t he plaintiff to make partial payments toward the filing fee for this app eal, 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 plainti ff 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 b y Mecham toward the filing fee. Therefore, we herein discharge the Order to S how 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 magist rate's recommendations. Finding no abuse of discretion with regard to the a bove claims, we AFFIRM. 3 4
Conclusion With regard to Case No. 96-4143, we AFFIRM the dist rict 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 districtcourt for further proceedings in conformance with this decision. With regard to Case No. 96-4178, we AFFIRM the dist rict court order dismissing as frivolous the section 1983 claims aga inst all defendants and DISCHARGE the Order to Show Cause issued on April 2 , 1997.

ENTERED FOR THE COURT

David M. Ebel Circuit Judge