* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. This 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.

** After examining the briefs and the appellate recor d, this three-judge panel has determined unanimously that oral argumentwould not be of material assistance in the determination of this appeal. Se e Fed. R. App. P. 34(a); 10th Cir. R. 34.1 (G). The cause is therefore ordered s ubmitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 5 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ERIC DEVELL PETTIT, Plaintiff - Appellant, vs. JOHN WHETSEL; OKLAHOMA COUNTY SHERIFF’S DEPARTMENT, Defendants - Appellees. No. 99-6107 (D.C. No. 98-CV-1615-R) (W.D. Okla.)

ORDER AND JUDGMENT *

Before ANDERSON , KELLY , and BRISCOE , Circuit Judges. **
Eric Devell Pettit, an inmate proceeding pro se, br ought this 42 U.S.C. § 1983 action, requesting $5.5 million in damages, ag ainst Defendants John Whetsel and the Oklahoma County Sheriff’s Department. He alleged that Defendants infringed his constitutional rights because (1) the state and the Daily- 2 -

Oklahoman conspired to publish a newspaper article accusing him of trafficking in cocaine base, and (2) he was formally charged an d arraigned on the cocainetrafficking offense nearly two months after his arr est, in violation of the Due Process Clause. Construed liberally, see Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991), his pro se complaint also asserte d that he was deprived of his Sixth Amendment right to counsel, see R. doc. 2, at 3 & Exh. 7-G, and that Defendants imposed excessive bail and inflicted cru el and unusual punishment upon him in violation of the Eighth Amendment. See R. doc. 2, at 3 & Exhs. A-1, F-6. The district court dismissed the complaint wi thout prejudice. The claim involving the newspaper article was dismi ssed because Mr. Pettit failed to state a claim upon which relief could be granted. See 28 U.S.C. § 1915A(b)(1). The district court also dismissed Mr. Pettit’s Due Process claim under the Youngerabstention doctrine. See Younger v. Harris , 401 U.S. 37, 53- 54 (1971). However, the court did not specificall y address his Sixth and Eighth Amendment claims. On appeal, Mr. Pettit reasserts all of his claims a nd challenges the court’s decision to apply Youngerabstention. He also seeks to supplement the recor d with evidence regarding an allegedly improper searc h of his home. Our jurisdiction arises under 28 U.S.C. § 1291, and we affirm. Mr. Pettit was arrested on January 28, 1998 for tra fficking in cocaine. He- 3 -

remained in jail for about two weeks before being c harged only with having outstanding traffic tickets. Just before he was to have been released, the Daily Oklahoman published a newspaper article indicating that he w as wanted for cocaine trafficking. Only then, almost two months after his initial arrest, was he formally charged and arraigned for the cocaine offe nse. He contends that his court date was continuously postponed after his arr aignment, and when he filed his § 1983 complaint, he still had not been tried. In a motion to supplement the record, he indicates that a state jury later found him guilty, presumably on the cocaine trafficking charge. The district court correctly held that Mr. Pettit’s allegations about a conspiracy involving the state and the Daily Oklahoman did not state a claim upon which relief could be granted. See § 1915A(b)(1). According to the Supreme Court, a plaintiff must allege something mo re than defamation by a state official to state a claim under § 1983. See Paul v. Davis , 424 U.S. 693, 711 (1976); see also Greene v. Barrett , 174 F.3d 1136, 1141 n.5 (10th Cir. 1999); Doe v. Bagan , 41 F.3d 571, 575-76 (10th Cir. 1994). A plaintif f’s reputation is protected by the state through its tort law; it doe s not implicate liberty or property interests under the Constitution. See Paul , 424 U.S. at 711-12. Therefore, this claim must be dismissed with prejudice. The district court’s abstention from deciding the D ue Process claim- 4 -

pursuant to Youngerwas appropriate. Mr. Pettit seeks damages for con stitutional violations that allegedly occurred during the pre-trial phase of a state criminal case pending against him when he filed his § 1983 c laims and for which he has not exhausted state appeals. Although Youngernarrowly proscribes federal injunctions and declaratory relief that interfere w ith on-going state criminal proceedings, see Younger , 401 U.S. at 41 n. 2, 53-54, the Tenth Circuit has extended the Youngerdoctrine to § 1983 claims for money damages. See Parkhurst v. Wyoming , 641 F.2d 775, 777 (1981). We recognize that a stay, rather than dismissal, of § 1983 damages claims is the preferred remedy under certain circumstances . See id. ; see also , e.g. , Yamaha Motor Corp. v. Stroud , No. 98-3870, 1999 WL 352997, at *4-5 (8th Cir. June 3, 1999). However, Mr. Pettit’s § 1983 claim alleging unreasonable pre-trial delays, if successful, would call his conviction into question. Hence, the district court properly dismissed it. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994). The court also should have dismissed the § 1983 exc essive bail claim pursuant to Heck . By contending that he possessed only 4.5 grams o f cocaine, rather than the five or more grams upon which the court calculated his $50,000 bond, Mr. Pettit essentially denies the charges against him, which h e may not do in a § 1983 claim. See R. doc. 2, Exh. F-6; Heck , 512 U.S. at 486-87. Likewise, his allegation that he was deprived of counsel for seve ral months before trial, see R.- 5 -

doc 2, Exh. 7-G, implicates the validity of his con viction and cannot be brought under § 1983. See Heck , 512 U.S. at 486-87. Pursuant to § 1915A(b)(1), the district court also should have dismissed Mr. Pettit’s claim that he suffered cruel and unusu al punishment. Our “broad reading of [a pro se] plaintiff’s complaint does no t relieve [him] of the burden of alleging sufficient facts on which a recognized leg al claim could be based.” Hall , 935 F.2d at 1110. Here, Mr. Pettit fails to present a single fact tending to show that Defendants violated his Eighth Amendment right s. Because “conclusory allegations without supporting factual averments ar e insufficient to state a claim on which relief can be [granted],” id. , we hold that Mr. Pettit’s claim regarding the infliction of cruel and unusual punishment is i nsufficient. He has made no effort to supplement this claim. Accordingly, we A FFIRM the judgment, modified to indicate that the defamation and cruel and unusual punishment claims brought under § 1983 are dismissed with prejudice, and the § 1983 claims based on Due Process, excessive bail, and Sixth Amendmentviolations are dismissed without prejudice. See Fottler v. United States , 73 F.3d 1064, 1065 (10th Cir. 1996) (“When a § 1983 claim is dismissed under Heck , the dismissal should be without prejudice.”). Finally, we DENY Mr. Pettit’s motions to supplementthe record with evidence of an allegedly unconstitutional search. Because Mr. Pettit failed to- 6 -

raise this issue before the district court, we cann ot consider it now. See City of Stilwell, Okla. v. Ozarks Rural Elec. Coop ., 166 F.3d 1064, 1073-74 (10th Cir. 1999).
AFFIRMED AS MODIFIED.

Entered for the Court
Paul J. Kelly, Jr. Circuit Judge