* This order and judgment is not binding precedent, except under the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. After examining the briefs and appellate record, th is panel has determined unanimously to honor the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. 

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

### SEP 24 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD HARPER, Plaintiff - Appellant,

v. JOHN ASHCROFT, U.S. Attorney General; ROBERT S. MULLER, III, Director of the FBI; KEVIN L. STAFFORD, FBI; ANGEL SHANK, B.O. Prisons, Custodian of Records, FCI Englewood; K. LANAGHAN, Case Manager and Counselor; GERALD T. VANBEBBER, Federal Judge; ROBERT S. STREEPY, Assistant U.S. Attorney, Defendants - Appellees. Nos. 04-1179 and 04-1210 (D. Colo.) (D.C. No. 03-Z-2653)

ORDER AND JUDGMENT *

Before SEYMOUR , LUCERO , and O’BRIEN , Circuit Judges.2

Pursuant to Bivens v. Six Unknown Named Federal Age nts , 403 U.S. 388 (1971), Donald Harper, a state prisoner appearing p ro se, brought claims of “illegal arrest,” violations of due process, and de nial of his right of free expression against, inter alia, Director of the FBI Robert Mueller and the warden of the prison at which he is currently incarcerated . The district court reviewed Harper’s complaint and determined that there was no cognizable Bivens claim stated in the original complaint and that he was ac tually seeking to overturn his conviction; it therefore dismissed the complaint wi thout prejudice to allow Harper to seek habeas corpus relief in the sentencing cour t. Because we agree with the district court’s conclusions, we AFFIRM the dismissal. After filing a notice of appeal of the district court’s dismissal, Harper fi led a “Motion Requesting . . . the Correction of Records” in district court. The dist rict court found that it no longer had jurisdiction over the underlying action and den ied Harper’s motion, which order Harper also timely appealed. By an order fil ed July 14, 2004, we consolidated Harper’s appeals. Exercising jurisdic tion pursuant to 28 U.S.C. § 1291, we AFFIRM the order denying jurisdiction, for substantially the same reasons as the district judge. Harper’s appeal of the district court’s dismissal o f his original action wrested that court of jurisdiction over subsequent related motions. The district3

court therefore properly found that it lacked juris diction over Harper’s “Motion Requesting . . . the Correction of Records” under S tewart v. Donges , 915 F.2d 572, 575 (10th Cir. 1990). The record Harper wishe s “corrected” is the court docket sheet from his original trial, which is “inv olved” in the alleged misconduct for which Harper seeks relief in the Bivens action whose dismissal he challenges in the instant appeal. Filing a notice of appeal, whether from a true final judgment or from a decision within the collateral o rder exception, “is an event of jurisdictional significance – it confers jurisdicti on on the court of appeals and divests the district court of its control over thos e aspects of the case involved in the appeal.” Stewart , 915 F.2d at 575 (citations omitted). As to the merits of Harper’s original complaint of December 19, 2003, he alleges that the arrest leading to his convictio n was based on FBI records showing a prior arrest on similar charges. Such an arrest would be a Fourth Amendment violation for lack of probable cause. He also claims that on December 11, 2003, prison officials blocked him fro m complaining to the proper parties regarding rights he felt were denied him, t hereby violating his rights to free expression and due process of law. Harper requested that the court grant him money damages, release, and that the FBI records be expunged. The district court dismissed Harper’s complaint, pointing out that it is generally “a federal prisoner’s challenge to his conditions of confineme nt” that are “cognizable under1 Although Heckinvolved a 42 U.S.C. § 1983 action, the 10th Circ uit

applies Heckto Bivens actions as well, Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir.1996). 4 Bivens .” (Harper v. Ashcroft , No. 04-1179, slip op. at 2 (D. Colo. filed Apr. 2 1, 2004)). We must construe Harper’s pleadings liberally becau se he is representing himself, Haines v. Kerner , 404 U.S. 519, 520-21, extracting the valid civil rights claims in Harper’s copious pleadings. Fulfilling t his responsibility does not turn us into the litigant’s “advocate” under Hall v. Bel lmon , 935 F.2d 1106, 1110 (10th Cir. 1991). A Bivens action is unavailable to challenge a conviction un til the conviction is overturned. Heck v. Humphrey , 512 U.S. 477, 486-87 (1994). 1 More specifically, Heckheld that when a state prisoner seeks damages for constitutional torts, “the district court must cons ider whether a judgment in favor of the plaintiff would necessarily imply the invali dity of his conviction or sentence; if it would, the complaint must be dismis sed.” Heck , 512 U.S. at 487. Heckacknowledges that some Fourth Amendment violations , “even if successful, would not necessarily imply that the plaintiff's co nviction was unlawful.” In such cases, “the action should be allowed to proceed,” I d. at 487, to the extent that the § 1983 plaintiff can prove not only that the search was unlawful, but that it caused him actual, compensable injury, which, we ho ld today, does not encompass the ‘injury’ of being convicted and imprisoned.” Id

. at n.7.5

Thus, regardless of whether Harper’s illegal arrestclaim “necessarily” implies the invalidity of his conviction or sentenc e, to the extent Harper seeks relief based on the alleged injury of his convictio n and imprisonment, his claims fall within Heckand to proceed on his illegal arrest claim, he mus t prove that it caused actual, compensable injury beyond the injury of being convicted and imprisoned. Harper’s sufferings from loss of “recr eational activities,” “confidence,” and “sleep” (Complaint at 6) are inju ries stemming entirely from his incarceration. By contrast, his First Amendmen t and Due Process claims, although they would not have arisen were Harper notin custody, do go beyond an injury inherent in conviction and imprisonment. A review of the record shows that Harper’s allegati ons are conclusory and fail to set forth a factual basis for his claims. While Harper’s complaint contains claims cognizable under Bivens , it does not state facts sufficient to support his allegations of violations of the First, Fourth, and Fourteenth Amendments. See Hall , 935 F.2d at 1110 (holding that “conclusory allega tions without supporting factual averments are insufficient to state a claim on which relief can be based” (citations omitted)). This deficiency remains even after Harper amended the complaint to comply with a magistrate judge’s orderto bring the complaint into line with standard FRCP Rule 8 pleading requirement s. Heckbars Harper’s claim of illegal arrest under Bivens because the alleged injury does not go beyond the injury of being convicted and imprisoned, and Hall permits the dismissal of Harper’s other, unsubstantiated, claims. The distr ict court therefore properly6

dismissed Harper’s action for purposes of a subsequ ent habeas petition, to be brought before the sentencing court – in this case the U.S. District Court for the District of Kansas. Accordingly, we AFFIRM the dismissal, but remind appellant Harper that he may bring his First and Fourteenth Amendment cla ims again under Bivens if he is able to focus and substantiate them. Harper’ s request to proceed on appeal in forma pauperis pursuant to 28 U.S.C. § 1915 is GRANTED . Harper’s August 24, 2004 motion for sanctions against the U.S. Atto rney for “failing to appear” or “file an answer brief,” filed August 24, 2004, is DENIED

.

ENTERED FOR THE COURT

Carlos F. Lucero Circuit Judge