FILED

United States Court of Appeals

Tenth Circuit

May 28, 2010

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

GUIDO JOHN ALVILLAR,

Plaintiff - Appellant, No. 09-4223

v. (D. Utah)

UTAH STATE BOARD OF

PARDONS; CURTIS L. GARNER,

Chairman of the Utah State Board of

Pardons; JESSE GALLEGOS, Utah

Board of Pardons member; CLARK A.

HARMS, Utah Board of Pardons

member; KEITH N. HAMILTON,

Utah Board of Pardons member;

ROBERT S. YEATES, Utah Board of

Pardons member; UTAH

DEPARTMENT OF CORRECTIONS;

CHRISTOPHER KISHIYAMA,

employee of Utah Department of

Corrections; MARC A. NOWAK,

employee of Utah Department of

Corrections; STEVEN TURLEY,

Warden, Utah State Prison; MIKE R.

SIBBET, Utah Board of Pardons

member; CHERYL HANSEN,

Chairman of the Utah State Board of

Pardons; DONALD E. BLANCHARD,

Utah Board of Pardons member;

GARCIA G. KURUMADA, employee

for indigent parolees; RUSSELL

SAINSBURY, employee of

Department of Corrections,

Defendants - Appellees.

(D.C. No. 2:09-CV-00659-CW)

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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not binding precedent except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value

consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

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ORDER AND JUDGMENT*

Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.

Guido John Alvillar, an inmate in Utah State Prison proceeding pro se and

in forma pauperis, filed in the United States District Court for the District of Utah

this civil rights action under 42 U.S.C. § 1983. He attacks the fairness of his

2002 and 2009 parole-revocation proceedings on the grounds (1) that on both

occasions he was improperly denied probable-cause hearings and his parolerevocation hearings were not held within a reasonable time, (2) that his appointed

counsel ineffectively represented him during both hearings, and (3) that in 2002

the parole board relied on inaccurate information in denying him parole. He

named as defendants the Utah Department of Corrections (UDOC), Utah Board of

Pardons (Board), Board members, UDOC employees, and his counsel for the

Board proceedings. He seeks damages and immediate release from confinement. 

The district court dismissed the complaint under 28 U.S.C.

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§ 1915(e)(2)(B)(ii) for failure to state a claim. It ruled that all claims related to

the 2002 revocation proceedings were barred by the Utah four-year limitations

period applicable to § 1983 claims. See Fratus v. DeLand, 49 F.3d 673, 675 (10th

Cir. 1995). As for the 2009 claims, it dismissed the claims against the Utah

Department of Corrections and its employees on the ground that Mr. Alvillar had

not established the required “affirmative link” between their actions and his

alleged constitutional deprivations, R. at 79 (internal quotation marks omitted);

held that Mr. Alvillar’s claims against the UDOC and against the Board and its

members in their official capacities were barred by the Eleventh Amendment; and

ruled that the Board members enjoyed common-law absolute immunity from suit

in their individual capacities.

“We review de novo the district court’s decision to dismiss an [in forma

pauperis] complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a

claim.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). We may affirm the

district court’s decision on any ground supported by the record. See Duncan v.

Gunter, 15 F.3d 989, 991 (10th Cir. 1994). Because Mr. Alvillar is acting pro se,

we construe his pleadings liberally. See Kay, 500 F.3d at 1218.

Relying on Heck v. Humphrey, 512 U.S. 477 (1994), Mr. Alvillar argues on

appeal that the district court erred in holding that his 2002 claims were timebarred because his claim could not accrue “until [his] parole revocation [is]

overturned or [he] is released.” Aplt. Br. at 6. He is partially correct, but his

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claim nonetheless fails. In Heck a state prisoner brought a § 1983 action for

damages, alleging that state officials had unconstitutionally caused his conviction. 

See 512 U.S. at 479. The Supreme Court held: 

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized 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.

Id. at 486–87 (footnote omitted). The Court stated that under its analysis, a

“statute of limitations poses no difficulty while . . . challenges [to the conviction]

are being pursued, since the § 1983 claim has not yet arisen.” Id. at 489. It

explained that “a § 1983 cause of action for damages attributable to an

unconstitutional conviction or sentence does not accrue until the conviction or

sentence has been invalidated.” Id. at 489–90. Heck has been applied to parolerevocation proceedings. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005); 

Spencer v. Kemna, 523 U.S. 1, 17 (1998).

Thus, Mr. Alvillar is correct that his 2002 claims are not time-barred to the

extent that he seeks damages for conduct that would render his parole revocation

unconstitutional. But by the same token he cannot pursue such claims until that

revocation has been set aside, which has not occurred. His appellate brief

contends that he can bring such claims once he is released from prison; but Heck

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unambiguously requires that the conviction or sentence be invalidated, not just be

served. See 512 U.S. at 490 n.10.

Mr. Alvillar’s only other contention on appeal is that Eleventh Amendment

immunity is not available for a knowing and intentional violation of constitutional

rights. The authorities he cites do not support his contention, and we are aware of

no authoritative support. Courts regularly recognize Eleventh Amendment

immunity for intentional conduct. See, e.g., Nielander v. Bd. of County Comm'rs

of County of Republic, Kan., 582 F.3d 1155, 1164 (10th Cir. 2009) (Eleventh

Amendment immunity applies to shield state attorney from malicious-prosecution

claim).

Accordingly, we AFFIRM the district court’s dismissal of Mr. Alvillar’s

suit. We GRANT Mr. Alvillar’s motion to proceed in forma pauperis, and we

remind him of his continuing obligation to make partial payments until the entire

fee has been paid in full. 

ENTERED FOR THE COURT

Harris L Hartz

Circuit Judge

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