                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit
                   UNITED STATES COURT OF APPEALS March 5, 2009

                                TENTH CIRCUIT                   Elisabeth A. Shumaker
                                                                    Clerk of Court


 RICHARD A. NICHOLS,

              Plaintiff-Appellant,                       No. 08-4158
 v.                                                      (D. of Utah)
 MARK BAER, COLIN                                 (D.C. No. 08-CV-89-DAK)
 WINCHESTER, and BRYCE GREER,

              Defendants-Appellees.



                           ORDER AND JUDGMENT *


Before LUCERO, ANDERSON, and TYMKOVICH, Circuit Judges. **



      Richard A. Nichols, appearing pro se, appeals the district court’s dismissal

of his § 1983 suit against Utah state officials Mark Baer, Colin Winchester, and

Bryce Greer alleging that these defendants violated his constitutional rights.

Taking jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
         This order and judgment is not binding precedent except under the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.
      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
                                     Background

      The parties are familiar with the facts and procedural history, so we provide

only the highlights. In 2002, after a three-day bench trial, Nichols was convicted

of five felony counts of communication fraud and one count of racketeering

relating to his conduct while employed at a used-car dealership. See Utah v.

Nichols, 76 P.3d 1173, 1175 (Utah App. 2003). He was sentenced to 365 days in

jail and required to pay $42,400 in restitution. His probation conditions included

the timely payment of restitution.

      The Utah Court of Appeals affirmed Nichols’s convictions. Nichols, 76

P.3d at 1182. On December 10, 2003, the Utah Supreme Court denied certiorari.

See Utah v. Nichols, 84 P.3d 239 (Utah 2003).

      Subsequently, Nichols failed to appear at a review hearing regarding his

progress towards making restitution, and the state court issued an arrest warrant

on December 23, 2003. On May 23, 2007, Nichols was arrested pursuant to the

2003 warrant, but he claimed to have medical problems and was not booked into

jail. He was instead taken to a hospital and released. On May 29, 2007, Assistant

Utah Attorney General Baer requested an order to show cause hearing in state

court. The hearing was scheduled for June 4, 2007, but Nichols failed to appear,

and instead filed a request for continuance. The court denied the request and

issued a new arrest warrant. On June 6, 2007, Nichols filed a motion to dismiss

the order.

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        Throughout June 2007, Nichols filed numerous documents in state court,

culminating in a Notice of Removal to federal district court. The federal district

court, however, remanded the case back to state court. The federal district court

informed Nichols that the case was closed and no further filings would be

accepted; the court also indicated that if Nichols wished to bring a civil action he

must initiate a new action by filing and serving a complaint.

        Then, on February 4, 2008, Nichols filed a verified complaint alleging a

violation of his constitutional rights by his convictions in state court and by

attempts to enforce the restitution order issued as part of his sentence. This

verified complaint is at issue in this appeal.

        In it, Nichols cited the 14th Amendment and the Utah constitution as the

bases for his claims. He sought a declaration that the defendants violated his

constitutional rights by prosecuting him, and sought an order enjoining the

defendants from additional legal proceedings relating to his state court criminal

case.

        The district court dismissed the case, finding that the case was time-barred,

and that the Rooker-Feldman and Younger abstention doctrines applied, as did

Heck v. Humphrey, 512 U.S. 477 (1994). The district court also found that the

defendants would be entitled to absolute prosecutorial or qualified immunity.




                                          -3-
                                     Analysis

      Although we construe Nichols’s pro se filings liberally, see Hall v.

Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991), we affirm the dismissal of

Nichols’s claims. While the vast majority of his claims are time-barred, his entire

case in barred under the teaching of Heck v. Humphrey, 512 U.S. at 486–87.

      In Heck, the Supreme Court explained that a § 1983 action that would

impugn the validity of a plaintiff’s underlying conviction cannot be maintained

unless the conviction has been reversed on direct appeal or impaired by collateral

proceedings. Id. The purpose behind Heck is “to prevent litigants from using a

§ 1983 action, with its more lenient pleading rules, to challenge their conviction

or sentence without complying with the more stringent exhaustion requirements

for habeas actions.” Butler v. Compton, 482 F.3d 1277, 1279 (10th Cir. 2007)

(citation omitted). Heck was clear that “civil tort actions are not appropriate

vehicles for challenging the validity of outstanding criminal judgments.” 512

U.S. at 486.

      Nichols’s complaint alleges civil rights violations based on his 2002

criminal convictions and the state’s attempts to enforce the restitution order

issued as part of the sentence. Nichols’s complaint—including his allegations

concerning the 2007 warrants for his arrest based on his failure to comply with

the restitution order—challenges his underlying convictions and sentence. He

contends that the original court order was illegal, and that he had no legal

                                         -4-
obligation to pay restitution. As we interpret his assertions, Nichols is in essence

arguing that the trial court improperly ordered restitution. Based on this

argument, he contends that officials have falsely arrested him and engaged in a

scheme to defraud him in their efforts to ensure he pays this court-ordered

restitution.

       This argument attacks Nichols’s underlying convictions and sentence.

Heck mandates that when a litigant seeks damages in a § 1983 suit, the district

court must consider whether a judgment in his favor would necessarily imply the

invalidity of his conviction or sentence. 512 U.S. at 487. Here, it would. If a

court were to find that Nichols did not owe restitution—that the restitution order

was improper—that finding would imply the invalidity of Nichols’s conviction or

sentence. Thus, “the complaint must be dismissed unless the plaintiff can

demonstrate that the conviction or sentence has already been invalidated.” Id.

Nichols cannot make such a showing, as Utah courts have affirmed his

convictions. See Nichols, 76 P.3d at 1182. The district court therefore properly

dismissed Nichols’s complaint.

                                    Conclusion

       For the foregoing reasons, we AFFIRM the dismissal of Nichols’s verified

complaint. We also DENY his requests to proceed in forma pauperis.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge

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