* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

 

** Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-30317

Summary Calendar

 

MULK RAJ DASS,

Plaintiff-Appellant,

versus

JOHN B.Z. CAPLINGER; CHRIS SALE,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 97-CV-1971

- - - - - - - - - -

January 20, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Mulk Raj Dass, federal prisoner # 97129-012, appeals the

district court’s dismissal of his Bivens** claims under 28 U.S.C.

§ 1915A(b)(1). Dass contends that the district court erred in

holding that Heck v. Humphrey, 512 U.S. 477, 487 (1984), rendered

some of his claims premature. Dass argues that the defendants’

misrepresentations to him regarding the issuance of a bond

violated his constitutional rights. He argues that the 
No. 98-30317

-2-

conditions in the Tulsa County Jail constituted cruel and unusual

punishment. Dass contends that his detention was not justified

under former 8 U.S.C. § 1252(a) and that his transfer to Oklahoma

without a hearing violated Fed. R. Crim. P. 40(a). Dass also

argues that the district court erred in holding that his claims,

alleging constitutional violations occurring between March 1995

and December 1995, had prescribed.

In Heck, the Supreme Court held that

in 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. A claim for damages

bearing that relationship to a conviction or

sentence that has not been so invalidated is not

cognizable under § 1983.

512 U.S. 486-87 (footnote omitted). A federal prisoner's Bivens

action is subject to the rule enunciated in Heck. Stephenson v.

Reno, 28 F.3d 26, 27-28 (5th Cir. 1994). If a plaintiff’s

successful pursuit of a civil rights claim challenges the

validity of his criminal conviction, and the plaintiff cannot

show that such conviction has been reversed, invalidated, or

otherwise set aside, the court may properly dismiss the civil

rights claim as frivolous. Mackey v. Dickson, 47 F.3d 744, 746

(5th Cir. 1995) (42 U.S.C. § 1983 complaint). However, if a

successful civil rights claim will not demonstrate the invalidity

of any outstanding criminal judgment against the plaintiff, the

action should be allowed to proceed in the absence of some other
No. 98-30317

-3-

bar to the suit. Id. Because Dass’s civil rights claims, if

successful, would not demonstrate the invalidity of any criminal

judgment against Dass, the claims are not premature under Heck.

The conduct underlying Dass’s civil rights claims occurred

between March and December 1995, and Dass did not file his civil

rights complaint until October 1, 1997. The federal courts look

to state law to determine the applicable limitations or

prescriptive period for a Bivens claim. Spina v. Aaron, 821 F.2d

1126, 1128-29 (5th Cir. 1987). The applicable prescriptive

period in Louisiana is one year. Elzy v. Roberson, 868 F.2d 793,

794-95 (5th Cir. 1989). Because Dass did not file his suit

within one year from the alleged acts underlying his claims, his

claims have prescribed. See Elzy, 686 F.2d at 794-95.

AFFIRMED.