ALD-067                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                   No. 10-3331
                                   ___________

                              DERRICK McKINNEY,
                                             Appellant

                                         v.

           PENNSYLVANIA BOARD OF PROBATION & PAROLE;
            PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
    CITY OF PHILADELPHIA COUNTY; CITY OF MONTGOMERY COUNTY;
           CITY OF CUMBERLAND COUNTY; JOHN/JANE DOE(S)
                 ____________________________________

                   On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                             (D.C. Civil No. 09-cv-03679)
                    District Judge: Honorable Timothy J. Savage
                    ____________________________________

                      Submitted for Possible Summary Action
                 Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                 December 16, 2010
          Before: SCIRICA, HARDIMAN and VANASKIE, Circuit Judges

                            (Filed: December 23, 2010)
                                    _________

                            OPINION OF THE COURT
                                  _________

PER CURIAM.

      Derrick McKinney, proceeding pro se and in forma pauperis, filed a complaint

pursuant to 42 U.S.C. § 1983 claiming that he had been imprisoned beyond the maximum
terms of his sentences for state convictions and a parole violation. He also alleged that

some of the defendants violated his due process and other constitutional rights by

incorrectly calculating his maximum sentence and by failing to conduct a parole

revocation or parole hearing when they revoked his parole and continued to detain him.

He sought declaratory relief and monetary damages against the defendants (although he

did not request monetary relief from all the defendants).

       Four of the five named defendants filed motions to dismiss the complaint. The

District Court granted the motions and dismissed the complaint in its entirety. McKinney

appeals.

       We notified McKinney that we planned to consider his appeal for possible

summary action. In response, McKinney retained counsel. Through his counsel,

McKinney presents a motion to remand this matter to the District Court with leave to

amend or re-file against the appropriate parties. He states that with the assistance of

counsel, he will file his complaint against the appropriate parties and “cure any and all

procedural defects that prevented [his] action from proceeding.” Several of the

defendants/appellees oppose McKinney’s motion.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our review is plenary. See

Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004); Allah v. Seiverling, 229 F.3d

220, 223 (3d Cir. 2000). On review, we will summarily affirm the District Court’s

judgment because no substantial issue is presented on appeal. See L.A.R. 27.4; I.O.P.

10.6; see also Erie Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988) (holding that
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we may affirm on an alternative basis supported by the record).

       The District Court properly dismissed McKinney’s complaint. McKinney’s action

is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because success on

his claims would necessarily imply the invalidity of the fact and the duration of his state

confinement, which have not been elsewhere invalidated. Absent the prior invalidation

of a state confinement, a § 1983 action for damages or equitable relief is unavailable if

success in that action would imply the invalidity of the fact or duration of the

confinement. See Wilkinson v. Dotson, 544 U.S. 74, 78 (2005); see also Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973) (stating that “when a state prisoner is challenging

the very fact or duration of his physical imprisonment, and the relief he seeks is a

determination that he is entitled to immediate release or a speedier release from that

imprisonment, his sole federal remedy is a writ of habeas corpus”); Williams v.

Consovoy, 453 F.3d 173, 177 (3d Cir. 2006) (holding that where success in a § 1983

action would imply the invalidity of a decision to revoke parole that has not been

otherwise rendered invalid, the action is Heck-barred); cf. Edwards v. Balisok, 520 U.S.

641, 646-48 (1997) (holding that a prisoner did not present a claim that was cognizable

under 42 U.S.C. § 1983 when he sought a declaration that the procedures used by prison

officials at his hearing to revoke good time credits violated his right to due process).

       Despite dismissing what was nominally a pro se civil rights complaint in part on

the defendants’ motions and in part sua sponte, the District Court did not consider

whether McKinney should have been afforded leave to amend. However, we conclude
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the District Court committed no error because amendment would be futile. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). Although McKinney argues

on appeal that he could file his claims against the proper parties and correct procedural

problems if he were permitted to remand, he simply cannot bring his habeas claims in a §

1983 action. Accordingly, we deny McKinney’s motion to remand, and we will affirm

the District Court’s judgment.




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