                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS January 23, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 WILLIAM HENRY SHERRATT,

               Plaintiff - Appellant,                    No. 07-4168
          v.                                               (D. Utah)
 ROBERT T. BRAITHWAITE, DAVID                    (D.C. No. 2:05-CV-658-TS)
 DOXEY, and MARK GOWER,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before KELLY, ANDERSON, and MURPHY, Circuit Judges.



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

unanimously that oral argument would not materially assist in 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.

      William Henry Sherratt, a Utah state prisoner proceeding pro se, appeals

from the district court’s dismissal without prejudice of his 42 U.S.C. § 1983 civil



      *
        This order and judgment is not binding precedent except under the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.
rights suit. In a thorough order, the district court liberally construed Sherratt’s

vague complaint as mounting challenges to his state court prosecution and the

resolution of his state court petition for post-conviction relief. The district court

noted that the contents of Sherratt’s civil rights complaint were nearly identical to

a 28 U.S.C. § 2254 habeas petition he had filed in federal district court shortly

after the filing of the instant civil rights complaint. Given the timing and nearly

identical content of the two suits, the district court concluded it was most likely

the instant civil rights complaint was intended as a collateral attack on Sherratt’s

conviction. Because such relief was only available in a habeas petition, Heck v.

Humphrey, 512 U.S. 477, 480-82 (1994), the district court determined Sherratt’s

complaint should be dismissed without prejudice. In the alternative, even

assuming the complaint was intended solely to vindicate Sherratt’s civil rights,

the district court noted the resolution of the complaint in Sherratt’s favor would

necessarily imply the invalidity of Sherratt’s conviction. Thus, Heck barred

Sherratt’s civil rights complaint absent a showing Sherratt’s conviction had been

overturned on direct appeal or in collateral proceedings. Id. at 483-87.

Accordingly, the district court determined dismissal without prejudice of

Sherratt’s complaint was appropriate no matter how the complaint was construed.

      This court has undertaken de novo review of the district court’s resolution

of Sherratt’s position. Perkins v. Kan. Dep’t of Corr., 165 F.3d 803, 806 (10th

Cir. 1999) (reviewing de novo dismissal under 28 U.S.C. § 1915(e)). That review

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demonstrates the district court’s resolution of Sherratt’s civil rights complaint is

clearly correct. Accordingly, we AFFIRM for substantially those reasons set out

in the order of the district court dated July 11, 2007.


                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




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