2003 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2003/1411 NOT PRE CEDENT IAL
THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

__________ Case No: 99-3278

__________ J. TODD C HAPM AN, a/k/a James Todd Chapman

v. COMMONWEALTH OF P ENNSYL VANIA; MICH AEL FISH ER, sued in hi s offici al capaci ty as Attorney General

of the Commonwealth of Pennsy lvania ; REBE CCA BICKLE Y, sued in her indivi dual capaci ty and in her offici al capaci ty as Direct or of the Bure au of Driver Lice nsing , Dep artme nt of T ransp ortation of the Co mm onw ealth of Pennsy lvania ; MICHA EL DA WIDA , sued i n his offi cial ca pa ci ty as All eg he ny Cou nt y Comm is si one r; LAWRENCE DUNN, sued in his o fficial c apac ity as Alleg heny C oun ty Co mm issione r; RO BE RT CR AN M ER , sued in his o fficial c apac ity as A lleghe ny Co unty Co mm issione r; RO BE RT CO LV ILL E, sue d in his ind ividua l capa city and in his fo rmer offic ial cap acity as Dis tric t Atto rn ey of Al le ghe ny Coun ty ; CLAI RE CAPR ISTO, sued in her indivi dual capaci ty and in her offici al capaci ty as Assist ant Dist rict AttorneyAllegheny County; SAND RA PR UEH S, sued i n her indi vidual c apacity and in her offi cial capacity as Assist ant Dist rict Attorneyof AlleghenyCounty; ANA GAR D STO CK, sued in her i ndividual capacity and i n her offic ial c apacity as Assist ant Dist rict Attorneyof AlleghenyCounty; DEBR A JUG AN, sued in her indivi dual capaci ty and in her of fici al capaci ty as Ass is ta ntDis tric t At

to rn ey of All eg he ny Cou nt y ; J OHN DOE GOO DW IN, sued i n his i ndividualcapacity and i n his offi cial ca pa cit y as A ss ist an t D ist ric t A tto rn ey o f A lle gh en y C ou nt y; EU GE NE RIC UIT TI, su ed in h is indiv idual c apac ity and in h is2 offici al capaci ty as Assist ant Dist rict Attorneyof AlleghenyCounty; MICH AEL ST RIELLY , sued i n his i ndividual capacity and i n his offi cial capacity as Assist ant Dist rict Atto rney of A lleghe ny Co unty; M AR K T RA NQ UIL LI, su ed in h is indivi dual capaci ty and in his offici al capaci ty as Ass is ta ntDis tric t Atto rn ey of Al le ghe ny Coun ty ; P ATRICK NIG HT ING AL E, sue d in h is indiv idual c apac ity and in h is offici al capaci ty as Assist ant Dist rict Attorneyof AlleghenyCounty; RAY MO ND A . NOVA K, sued in hi s indi vidual capacity and in his of ficial capacity as Judge o f the Co urt of Common Pleas of AlleghenyCounty; DON ALD MA CHEN , sued in his indivi dual capaci ty and in his offici al capaci ty as Ju dg e o f th e C ou rt o f C om m on Pl ea s o f A lle gh en y C ou nt y; LO UIS CO LE S, sue d in h is indiv idual c apac ity and in h is official capac ity as Magistrate Judg e of the T raffic Co urt of the City of Pi tts burgh; WILLIAM SIM MO NS, sued in hi s indi vidual capacity as Chief Magistr ate Judge of the City of Pi tts burgh; MICH AEL M ACH EN, sued in hi s indi vidual c apacity and i n his former offic ial cap acity as D irector o f the O ffice of the Pub lic De fend er of A lleghe ny Co unty; K EV IN G . SA SIN OS KI, su ed in his i ndividualcapacity and i n his offi cial capacity as Director of the Office of

the Publi c Defender of Alleghe ny County; MITCH ELL K AUFM AN, sued in his indivi dual capaci ty and in his offici al capaci ty as Chief of the Appellant divis ion of th e O ff ice of th e P ub lic D ef en de r o f A lle gh en y C ou nt y; JOHN FENN ER, sued in hi s indi vidual c apacity and i n his offi cial ca pa cit y as a P ub lic D ef en de r o f A lle gh en y C ou nt y; JAM ES DU RK IN, su ed in h is indiv idual c apac ity and in h is of fic ial ca pa cit y as a P ub lic D ef en de r o f A lle gh en y C ou nt y; CAN DAC E CAIN , sued i n her indi vidual c apacity and i n her offic ial ca pa cit y as a P ub lic D ef en de r o f A lle gh en y C ou nt y; CHA RLES T . CLARK , sued i n his i ndividualcapacity and i n his offi cial

ca pa cit y as a P ub lic D ef en de r o f A lle gh en y C ou nt y; M AR Y O GD EN , sued in her in dividu al cap acity and in her offic ial c apacity as a ty pist in the Offi ce of the Public Defender

of AlleghenyCounty; CAR OL M OSS, sued in her individ ual ca pacity an d in h er off icial cap acity as M inute C ler k i n t he C ou rt o f C om m on Pl ea s o f A lle gh en y C ou nt y; KAR EN N ORK US, sued in her indivi dual capaci ty and in her offici al capaci ty as Minute Clerk in the Court of Common3 Pleas of All egheny County; CHR ISTINE M ARTO NE, sued in her indivi dual capaci ty and in her of fici al capaci ty as Chief Psychi atri st i n the Court of Common Pleas of Allegheny Co unty; SA BO TO ST ILE , sued in his in dividu al cap acity and in his offi cial capacity as Psychi atri st i n the Court of Common Pleas of All egheny County; JOYCE LEE ITKIN , sued i n her indivi dual capaci ty and in her of fici al capaci ty as Clerk of Co urts of Alleg heny C oun ty; THO M AS FR AN K, su ed in h is individual cap acity and in his official capa city as Court Rep orting N etwo rk O ffice r; JOS EP H R OS E, sue d in h is individ ual ca pacity an d in h is off icial cap acity as Pa role O ff ice r o f th e C ou rt o f C om m on Pl ea s o f A lle gh en y C ou nt y; JOLYN NE RO SS, sued i n her indi vidual c apacity and i n her offici al capaci ty as Direct or of Court Reporters of AlleghenyCounty; MA RK C ORB IN, sued i n his i ndividual capacity and in his of ficial capacity as Off icial Court Reporter of

AlleghenyCounty; SUSA N E. LLO YD, sued in her indivi dual capaci ty and in her of fici al capaci ty as Officia l Court Reporte r of Alleghe ny County ; KIMBER LY H OLBE IN, sued in her i ndividualcapacity and i n her offic ial c apacity as Off ic ia l C our

t R ep or te r o f Al le ghe ny Cou nt y ; L OURI E KASARD A, sued in her in dividu al cap acity and in her o fficial c apac ity as Official Court Reporter of Allegheny County; WEND Y J. DOD DS, sued in her

indivi dual capaci ty and in her of fici al ca pa cit y as O ff ici al C ou rt R ep or ter of A lle gh en y C ou nt y; LISA VA N SCY OC, sued in her i ndividualcapacity and i n her offici al capaci ty as Officia l Court Reporter of Alle gheny County; TERES A BEN SON, sued in her i ndividualcapacity and in her offi cial capacity as OfficialCourt Reporte r of AlleghenyCounty; JANET CAM PBELL , sued i n her indi vidual capacity and in he r official capac ity as Official Cou rt Rep orter o f A lleghe ny Co unty; EU GE NE CO ON , sued in his indivi dual capaci ty and in his offici al capaci ty as Sheri ff of AlleghenyCounty; MA RK ZU GER, sued in his i ndividual capacit y and i n his offi cial capacity as Chief of Poli ce of the B orou gh o f H om estead ; JOH N M CD ON OU GH , sued in his indivi dual capaci ty and in his offici al capaci ty as Sergeant of P olice o f the B orou gh o f H om estead ; CA RL M AR CU S, sue d in his ind ivi dualcapa ci tyas a n attorney ; MARILYN AL KHAFIZ, sued in he r individual cap acity as an attorney; ST. FR AN CIS4 CE NT RA L M ED ICA L C EN TE R, a c orpo ration w hich o perate s in All egh enyCoun ty ; J ANE DOE BROWN, a n ur se atSt . F ra nci s CMC; DR. J OHN DOE MINSHULL, a ph y si ci an a t S t. Fra nci s CMC; TOM MU RPHY , sued i n his offi cial capacity as Mayor of the City of Pitt sburgh; SALVATR E SIRAB ELLA , sued i n his offi cial capacity as the DeputyMayor of the Ci ty of Pitt sburgh; ROB ERT W . MCN EILLY, JR., sued i n his offi cial capacity as Chief of Poli ce, City of Pi tts burgh; EARL BU FORD , former C hi ef of Po lic e, C ity o f P itts bu rg h, s ue d i n h is i nd iv id ua l ca pa cit y; FRA TER NA L OR DER OF PO LICE, FO RT PIT T LO DG E NO . 1, c/o Marshall Hynes,

President; JO HN DO E A LLM AN , Pittsburgh Po lice Office r; BAR T SCA LA, Pitt sburgh Poli ce Officer; CHES TER K EPKA , Pittsburgh Police O fficer; JOH N D OE MIH AL OW , Pittsburgh Po lice Office r; MA NI G RE GO RC HIK , Pittsburgh Po lice Office r; SAM UE L B RU NI, Pitt sbrugh Poli ce Officer; JAME S R. SMITH , Pittsburgh Pol ice Off icer; DA VID CA PLA N, Pittsbrugh Police O fficer; CH RIS WY DRA , Pittsburgh Pol ice Officer ; DOES 1-8, sued in t heir i ndividual capa cities; D OE S 9-1 4, D eputy S heriff of A lleghe ny sued in their indivi dual capaci ties ; ALTERN ATIVES DUI, a corporation which operates in A llegheny Cou nty; STEV EN R. TA BA NO , a private lawyer, sued in hi s indi vidual c apacity; MEL ANIE SH ANN ON R OTH EY, sued in her indivi dual capaci ty as a law cl erk for fr . Raymond A. Novak; RO BE RT E. D AU ER , sued in his in dividu al cap acity and in his offici al capaci ty as Judge of the Court of Common Pleas of Alle gheny Co unty; D AV ID A . SZE WC ZA K, su ed in h is indiv idual c apac ity and in h is official capac ity as the Prothonotary of the S uperior C ourt Pennsyl vania; ELEA NOR R. VALE CKO , sued on her indivi dual capa city and in her o fficial c apac ity as the D eputy Prot honot ary of the Sup eri or Cou rt

Penns yl vani a; RONALD BOG LITZ, sued in hi s indi vidual c apacity and i n his offi cial capacity as Parole Offic er Supervi sor of the Court of Common Pleas of All egheny County; MA RY B . MCCA RTHY , sued i n her indivi dual capaci ty and in her of fici al capaci ty as Officia l Co urt R epor ter of A lleghe ny Co unty; G AR Y G RA HA M , sued in his indivi dual capaci ty and in his former offi cial capacity as Mayor of the Borough of Homestead; BETTY ES PER, sued in her off ic ia l c apa ci tyas May orof t he Bo ro ugh of Ho mes te ad; BART VAN T, sued i n his i ndividualcapacity; JANE D OE TW O, a nurse at the AlleghenyCounty J ail; CALV IN LIGHT FOOT , warden of the Allegheny County j ail, sued in hi s offici al capaci ty and in his indivi dual5 capa city

J. Todd Chapman, Appellant

__________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE WE STE RN DIST RIC T O F PE NN SY LV AN IA

(D.C. Civi l No. 98-cv- 00479) Distri ct Judge: The Honorable Robert J . Cindri ch

___________ Submitte d Under Third Circ uit LAR 34.1(a)

October 9, 2003
BE FO RE : NY GA AR D, M cK EE and ST AP LE TO N, Circu it Judges

.

(Fil ed: November 4, 2003 )

___________ OPINI ON OF THE COURT

___________ NYGAARD, Circuit Judge. Appellan t Todd Chapman filed

a voluminous civil ri ghts com plaint ag ainst var

ious officials of the Commonwealth of Pennsylvania as well as several private entities. The District C ourt dismis sed the c omplaint. We will affi rm. I. The facts of this c ase are

set forth at length in the pa

rties’ br iefs and , theref

ore, will only6

be summarized here. Appellant, Todd Chapman, was convicted by a jury in the Court of Common Pleas of Allegheny County of driving under

the influence (“DUI”) and resisting arrest. Chapman was sentenced to a period of incarc eration of twenty -eight day s and to a two-ye ar term of proba tion for th

e DUI charg e. No fur

ther pen alty

was imposed for the

resisting arrest conviction, and his sentence was stay ed pending appeal. Chapman had difficulties with sever al of the attorney s appointed to represent him and, after conducting a hearing, the trial court determined that new counsel should not be appointed for Chapman. The Pennsylvania Superior Court adopted the trial court’s findings, and ordered Chapma n to file his brief by Mar

ch 1, 1999. Chapman failed to comply with this order and the Superior Court dismissed his appeal for failure to prosecute. Two months later, the trial court or dered Chapman to report to the courthouse to serve the sentence tha t had been imposed. Chapman failed to appear, was found to be in contempt of the cour t’s January 30, 1997 sentencing order, and was remand ed to t he cus tody of th e Alle gheny Coun ty Jail . At a c ontem pt rev iew he aring, the trial court determined that Chapman was unable to coopera te in the criminal justice system due to mental illness. Accordingly , the court revoked its previous sentence, imposed a sentenc e of time served plus eighteen months probation, and released Chapman from custody. Chapman did not appeal this sentence. During the pendency

of these state court proceedings (in pa rticular, while his appeal was before the Pennsy

lvania Superior Court), Appellant filed a complaint pursuant to 42 U.S.C. § 1983 alleging violations of his constitutional and civil rights arising out of his arr est, convictions and sentence. Chapman alleged, inter alia , that var ious state defenda nts (more than eig hty in total) had falsely a

rrested and imprisoned him, used excessive force in arre sting him, and pursued1 The District Court’s dismissal of Chapman’s complaint was without prejudice.

When a District Court has dismissed a complaint without prejudice, the dismissal is not immediately appea

lable unless the plaintiff cannot amend or declares his or he r intention to stand on the complaint. Borelli v. City of Reading , 532 F.3d 950, 951-52 (3d Cir. 1976). Chapman contendsthat he e

xpressed h

is desire to stand on

the compl aint as filed in both his objections to the Magistrate Judge’s Report and Recommendation and in his notice of a ppeal. Additionally, he has unequivocally stated in submissions to this Court that he wishes to stand on his amended complaint. Accordingly , we have jurisdiction over this appeal. See Remick v. Manfredy , 238 F.3d 248, 254 (3d Cir . 2001) (w here ap pellant u nequivoc ally

states int ent to stand on his complain t to appellate cou

rt, Court of Appea

ls has juri sdiction o ver the a ppeal); see also S

hapiro v. UJB F inancial Co rp ., 964 F.2d 272, 279 (3d Cir. 1992) (“a plaintiff can conver t a dismissal with leave to amend into a final order by electing to stand upon the original complaint”) (citing Borelli 532 F.3d at 951-52).

2 There was no indication in the District Court record or in the parties’ initial submissions to this Court as to the actual sentence Chapman received for his DUI conviction. The only period of c

ustody refer

enced by Appellant was a short stay in jail (i.e., just over one 7 his arrest, prosecution and incarcera tion without probable cause and on the basis of his race. The District Court (Cindrich, J.) adopted the report issued by the Magistrate Judge, which recommended that defendants’ motions to dismiss for failure to state a claim be g ranted and that the complaint be dismissed (with the exception of Appellant’s claims of use of excessive force, which were dismissed as violative of Fed. R. Civ. P. 8) on the ground that Chapman’s convictions had not been previously invalidated by the state c ourts or called into question by the issuance of a federal writ of habe as corpus as required by the Supreme Court in Heck v. Humphrey , 512 U.S. 477 (1994). 1 Chapman appealed the District Court’s dismissal order and we appointed amicus counsel to brief the question of whether the favorable ter mination requirement set forth in Heck bars a claim brought pursuant to 42 U.S.C. § 1983 by a plaintiff who, because of the imposition of a very short sente

nce (or no period of incarcer ation at all), is no longer in the custody of the State, and thus has no remedy in habea s corpus. 2 Briefing is com plete and this appeal is now ripe forweek), and it was not clear whether this was immediate ly after his ar

rest, during the pendency of the criminal proceedings, or after his conviction. Moreover, no mention was made by the parties of the imposition of a probationary pe riod. Thus, the issue suggested for supplemental brief ing refer red to a § 1983 plain

tiff who r eceived a short s entence

or no sent

ence at all. I t was not un

til the parties filed supplemental briefs and refer enced Chapman’s subsequently -filed habeas petition (discussed infra) that the details of his criminal convictions and sentence were made known.

3 On June 21, 1999, three months after the District Court dismissed his § 1983 complaint, Chapman filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Howeve r, beca use Appellant had

been re leased f rom custo dy on Octobe

r 8, 1999 a

nd his probationary pe

riod expired on April 8, 2001, the District Court adopted the Report and Recommendation issued by the Mag istrate Judge and dismissed the petition as moot in an order entered on July 11, 2001 . See Chapman v. Commonwealth of Pa., et al., W.D. Pa. Civ. No. 99- cv-00979. It does not appear that Chapman ever appealed the District Court’s dismissal order.

8 disposition. 3
II. Varied interpretations of the Heck holding have issued, partially because the languag e of the holding does not appear to be limited to the facts of the case . The holding speaks in terms of “a § 1983 plaintiff,” although the plaintiff in Heck was an inmate. The Supreme Court in Heck held as f ollows: [I]n order to recover damages for allegedly unconstitutional conviction or imprisonme

nt, or for other ha rm caused by

actions w

hose unla wfulnesswould render a conviction or se

ntence invalid, [fo otnote omit ted] a § 198 3 plaintif

f must prove tha t the conviction or s entence has been revers ed on direct appea

l, expunged by

executive

order, d eclared invalid by a

state tri bunal aut horized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damag es bearing that relation ship to a c onviction or sente nce that has not been so invalidated is not cognizable under § 1983. 512 U.S. at 486-87 (emphasis in original). We conclude that we need not answer the question of the a pplicability of Heck at this time beca use the situation pr

esented by t his case does not give us the

appropr iate oppo rtunity to9

do so. When Chapman filed his § 1983 action in the District Court, his state appeal was pending before the Pennsy

lvania Superior Court. It has long been established that the exclusive method of challenging

an allegedly

unconstit utional sta

te conviction in the l ower federal c ourts is a habeas corpus action. See Preiser v. Rodriguez , 411 U.S. 475, 488-9 0 (1973); see also Leamer v. Fauver, 288 F.3d 5 32, 540 (3 d Cir. 2002 ). Additionally , the Supre me Court has repea

tedly admonished that civil tort actions (as well as § 1983 actions) are not the “appr opriate vehicles for challenging the validity

of outstanding criminal judgments.” Heck , 512 U.S. at 486. Thus, the Court made clear in Heck that to recover damages for a n allegedly

unconstitutional conviction or imprisonment, “a § 1983 plaintiff must prove that the conviction or sentence has been r eversed on direct appeal , expunged by executive

order, d eclared invalid by a

state tri bunal aut horized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. As summarized by the Second Circuit in Huang v. Johnson , “[t]he Court’s rationale was based, in part, on a desire to ‘avoid parallel litigation over the issues of probable cause and guilt,’ prevent ‘the creation of two conflicting r esolutions arising out of the same or identical transaction,’ and preclude ‘a convicted criminal defendant from making a collater al attack on the conviction through the vehicle of a civil suit.’” 251 F.3d 65, 73 (2 nd Cir. , 2001 ) (quo ting Heck 512 U.S. a

t 484). Wha

t Chapman s ought to d

o throug h the filing of his § 1983 acti on was to simultaneously have his DUI and resisting arrest convictions and sentence declared invalid, and
to recover dama

ges for the allegedly

improper actions o f the nam

ed defe ndants—a

ll while his direct a ppeal was still pend

ing in sta te court . This ty

pe of “hy bridization,” as the

First Cir cuit referred to it in Figueroa

v. River a , 147 F.3d 77, 81 (1 stCir. 1998) , is foreclosed by the Supre

me4 Counsel for Appellees St. Francis Central Hospital, Jane Doe Brown, a nd Dr. John Doe Minshull, incorrectly state s that “at the time Chapman initiated this action on April 19, 1999, he lacked a procedural vehicle to challenge his conviction [as] the Superior Court of Pennsylvania dismissed his appeal for f ailure to file a brief on March 10, 1999.” As noted previously, Chapman filed his § 1983 action on March 10, 1998 (not April 19, 1999) , while his direct a ppeal was still pend

ing bef ore the Su

perior Co urt. 10 Court’s decision in Heck , which “makes the impugning of an allegedly unconstitutional conviction in a separate, antecedent proceeding a prerequisite to a resultant section 1983 action for damages.” As Justice Souter explained in Heck , “allowing a sta te prisoner to pro ceed dir ectly with a federal c ourt § 1983 attack on his conviction or s entence ‘would wholly

frustra te explicit intent’ as declared in the habeas exhaustion requirement.” Heck , 512 U.S. at 498 (quoting
Preiser , 411 U.S. at 489). This appears to be exactly what Chapman did. Without waiting for a decision by the Superior Court on his direct appeal, Chapman sought to challenge his convictions and sentence and to obtain damages throug h a § 1983 action filed in the United States District Court for the Western District of Pennsylva nia. This is not a situation where the remedy of federal habeas was unava ilable to Chapman, but rathe r prese nts a cas e in which , at the tim e he filed his § 1983 complain t, Chapman

simply had not first exhausted state remedies nor availed himself of the fede ral habeas option. 4 The trial court imposed a sentence of twenty-eight day s imprisonment and a two-yea r probationary

period on Chapman. That sentence was stay ed during the pendency

of Chapman’s appeal. Additionally, the trial court revoked its earlier order and sentenced Chapman to time served plus eighteen months of probation. Chapman failed to seek eve n initial review of this newly imposed sentence, despite the fact that such an appe al would have afforded him direct appellate r eview of a criminal sentence that had once befor e been dismissed on procedural grounds.11

Given the particular circ

umstance s of this case, Appellant doe s not appe ar to fa ll within one of the classes of § 1983 plaintiffs that the Justices had noted concern for in the Spencer v. Kemna dictum , i.e., “individual s without r ecourse to the hab eas statu

te beca use they are not ‘ in custody’ (people

merely fined or whose sentences have been fully served, for example)”, 523 U.S. 1, 21 (1998), as his probationary period—which did not expire until April 8, 2001 (more than three years af

ter the f iling of his § 1983 c omplaint)—would ha ve satisf ied the ha beas “in custody” requirement even if his period of incarcera tion had been served in its entirety

. See United States ex rel. Wojtycha v. H opkins , 517 F.2d 420 (3d Cir. 1975) (a prisoner out on probation is still in custody). I n fact, as noted previously , Chapman did seek habeas relief after the court dismissed his § 1983 complaint, although without successfully securing its remedy since his s enten ce had e xpi red du ring th e pend ency of tha t proc eedin g. Amicus argues that, regar dless of Chapman’s custody status at the time he filed his § 1983

ac ti on , A pp el la nt ha s s in ce be en re le as ed an d t hu s a ny Heck bar that might have existed at the time of the District Court’s dismissal has been removed. We do not agree. The Supreme Court specifically noted in Heck that “the principle barring collatera l attacks is not rendered inapplicable by the f

ortuity that a convicted c

riminal is no longer incarcerated.” Heck , 512 U.S. at 490 n.10. Amicus is correct to point out that in Nonnette v. Small , , the Ninth Circuit allowed one plaintiff to proceed with a § 1983 claim even though a petition for writ of habeas corpus would have had to be dismissed for lack of a case or controversy because the plaintiff’s period of incarceration expired after the entry of the order of dismissal but prior to the disposition of the appeal. 316 F.3d 872, 877-78 (9 th Cir. 2002). The court in Nonnette , howeve r, was pa rticular ly careful to limit its holding to a narrow class of plaintiffs. The court emphasized that its holding12

“affects only

former prisoners challenging loss of good-time credits, revocation of parole or similar matters; the status of prisoners challenging their unde rlying c onvictions or sentences does not change upon release, bec ause they c ontinue to be able to petition for a writ of habeas corpus.” Id. at 878 n.7 (c itin g Spencer , 523 U.S. at 7-12). The court in Nonnette concluded that, und er the circumsta

nces of t hat case (i.e., th e loss of 360 days of good-time credits, the exhaustion of administrative remedies, and the unavailability of fede

ral habeas relief), “justice requir es that we vacate the judgment of the District Court and permit Nonnette to proceed with his § 1983 claims here.” 316 F.3d a t 878. There does not appear to be any such justification presented by the circumstances of Chapman’s

case, e specially g

iven the f act that Chapman a

bandoned his pursu

it of state remedie s by

failing to file a brief with the Superior Court and subsequently failing to appeal his new sentence. Even the subsequent dismissal of Chapman’s habeas petition (which, despite a probationary sentence that ultimately extended three y ears into the future, was filed more than a y ear after he initiated his § 1983 a

ction, mor

e than thr ee monthsafter th

e entry of the dis missal ord

er, and p rior to exhaustion of state remedies) fails to tip the “justification” scale in Appellant’s favor. Aside from the mootness determination, the petition would have been subject to dismissal on the ground that Chapman failed to exhaust his state court remedies or procedurally defa ulted the claims presented in the § 2254 petition.
III. Chapman’ s § 1983 action fallswithin the purview of the Supr

eme Court ’s decis ion in Heck and the D istrict Cou rt prope rly dismissed t

he compla

int for fa iling to sa tisfy the “fa vorable termination” requirement. The District Court’s order will be aff irmed.13

_________________________ TO THE C LERK:
Please fi le the foregoing opi nion.

/s/ Richard L . Nygaard Circuit Judge