                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  June 24, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                          FOR THE TENTH CIRCUIT




    LEO J. SCHWARTZ, III,

              Plaintiff-Appellant,

    v.                                                  No. 09-2302
                                           (D.C. No. 1:09-CV-00772-KBM-ACT)
    NEW MEXICO CORRECTIONS                               (D. N.M.)
    DEPARTMENT PROBATION AND
    PAROLE; REGION III–DISTRICT
    VII–SOCORRO COUNTY DIVISION
    OF PROBATION AND PAROLE;
    CHARLES RUTTA; JAMES R.
    BUNNELL; TONYA TOOMEY;
    ROBERT MAY; CHARLENE
    KNIPFING; SEAN GIFFORD,

              Defendants-Appellees.



                           ORDER AND JUDGMENT *


Before McKAY, Circuit Judge, BRORBY, Senior Circuit Judge, and EBEL,
Circuit Judge.




*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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.
      Plaintiff Leo J. Schwartz, III, appearing pro se in the district court and on

appeal, filed a complaint against the defendants under 42 U.S.C. § 1983. In the

first three counts of his complaint, Mr. Schwartz asserted that defendants violated

his equal-protection rights and his rights under the First and Fourteenth

Amendments in connection with the revocation of his probation. 1 In his fourth

count, he asserted that his constitutional rights were violated by a temporary

seizure of his storage unit after he was jailed for the probation violation.

Mr. Schwartz consented to a magistrate judge conducting all the proceedings in

his case. The magistrate judge screened the case, denied his motion to proceed in

forma pauperis (IFP), and dismissed his complaint for failing to state a claim on

which relief could be granted under 28 U.S.C. § 1915(e)(2)(B)(ii). She dismissed

the first three counts with prejudice as barred by Heck v. Humphrey, 512 U.S. 477

(1994). The magistrate judge dismissed the fourth count without prejudice for

failure to state a claim upon which relief could be granted. She also denied his

motion to proceed IFP on appeal, certifying that the appeal was not taken in good

faith. Mr. Schwartz appeals, arguing (1) the magistrate judge erred in denying his

motion to proceed IFP and his motion to proceed IFP on appeal; (2) the

magistrate judge erred in dismissing counts one through three with prejudice for

failure to state a claim upon which relief could be granted; and (3) the magistrate


1
      According to the complaint, the individual defendants are all employees of
the New Mexico Corrections Department of Probation and Parole.

                                         -2-
judge erred in determining that his constitutional rights were not violated by the

seizure of his storage locker. We have jurisdiction over Mr. Schwartz’s appeal

under 28 U.S.C. 1291, and affirm, although in some cases for reasons other than

those relied on by the district court.

                                 I. BACKGROUND

       Mr. Schwartz pled guilty in 2007, in New Mexico state court, to possession

of a firearm or destructive device by a felon. He was sentenced August 10, 2007,

to a term of eighteen months, followed by one year of parole. The sentence was

suspended and Mr. Schwartz was placed on supervised probation for eighteen

months. Four days later Mr. Schwartz was placed in custody for violating his

probation conditions. On November 5, 2007, the court entered an order revoking

Mr. Schwartz’s probation, finding that “in open court . . . , the Defendant entered

an admission to violating Standard Probation #15 by consuming alcohol while on

probation.” R., Vol. 1 at 22. The court revoked Mr. Schwartz’s probation based

solely on this admission, noting that “[t]he remaining charged probation

violations filed in the Motion to Revoke Probation are dismissed by the State.”

Id. at 23.

       The first count of Mr. Schwartz’s complaint asserted that probation officers

violated his constitutional right to equal protection under the law because they did

not seek to revoke the probation of another probationer, with whom Mr. Schwartz

was arrested and who had also consumed alcohol. The second count of the

                                         -3-
complaint asserted that the probation condition prohibiting the use of alcohol

violated his liberty interest in drinking alcohol. The third count argued that the

special conditions, allegedly subjecting Mr. Schwartz’s decisions as to where he

lives and works to approval of the probation officer in charge of his case, violated

his constitutional rights. As to the fourth count, the complaint asserted that

sometime after Mr. Schwartz’s arrest, a probation officer obtained a search and

seizure warrant for a storage unit he owned and placed a new lock on the unit.

Mr. Schwartz asserted that the replacement of the lock violated his constitutional

rights because “[n]obody was able to enter [his] storage unit . . . until after . . .

[his] probation was revoked[.]” Id. at 15.

                                    II. ANALYSIS

A. IFP Status

      Mr. Schwartz first argues that the magistrate judge did not have authority to

deny him IFP status under Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987).

That case is inapposite because it dealt with the scope of a magistrate judge’s

power under 28 U.S.C. § 636(b). Mr. Schwartz, however, agreed in writing that,

under § 636(c), the magistrate judge could conduct all the proceedings.

See 28 U.S.C. § 636(c)(1) (“Upon the consent of the parties, a . . . magistrate

judge . . . may conduct any or all proceedings in a jury or nonjury civil matter and

order the entry of judgment in the case, when specially designated to exercise

such jurisdiction by the district court or courts he serves.”).

                                           -4-
      Mr. Schwartz also argues that the magistrate judge erred in denying his

motion to proceed IFP. “[W]e review the district court’s denial of IFP status for

an abuse of discretion.” Lister v. Dep’t of Treasury, 408 F.3d 1309, 1312

(10th Cir. 2005). Mr. Schwartz argues the magistrate judge abused her discretion

because he has no money. But the judge’s denial was not based on

Mr. Schwartz’s financial status. The motion was denied for the same reason the

judge dismissed Mr. Schwartz’s case: i.e., the failure of the complaint to present

a reasoned, nonfrivolous argument in support of the issues raised therein. See id.

(“[I]n order to succeed on a motion to proceed IFP, the movant must show a

financial inability to pay the required filing fees, as well as the existence of a

reasoned, nonfrivolous argument on the law and facts in support of the issues

raised in the action.”).

B. Heck v. Humphrey

      We turn now to Mr. Schwartz’s argument that the court erred in dismissing

the first three counts of his complaint as barred by Heck v. Humphrey. 2

             We review de novo the district court’s decision to dismiss an
      IFP complaint under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state
      a claim. Dismissal of a pro se complaint for failure to state a claim
      is proper only where it is obvious that the plaintiff cannot prevail on

2
      We note that Mr. Schwartz also briefly argues that he included sufficient
“names, dates, times, locations, and specific people” to support his complaint.
Aplt. Br. at 11. This argument must fail because the magistrate judge’s dismissal
was not based on a failure to allege enough specific facts. Instead she dismissed
the complaint because the facts that were alleged failed to state a claim upon
which relief could be granted.

                                           -5-
      the facts he has alleged and it would be futile to give him an
      opportunity to amend. In determining whether a dismissal is proper,
      we must accept the allegations of the complaint as true and construe
      those allegations, and any reasonable inferences that might be drawn
      from them, in the light most favorable to the plaintiff.

             We apply the same standard of review for dismissals under
      § 1915(e)(2)(B)(ii) that we employ for Federal Rule of Civil
      Procedure 12(b)(6) motions to dismiss for failure to state a claim.
      We recently gave fuller meaning to our standard for Rule 12(b)(6)
      motions in light of the Supreme Court’s 2007 decisions in Bell Atl.
      Corp. v. Twombly, 550 U.S. 544 (2007), and Erickson v. Pardus,
      551 U.S. 89 (2007). In the Rule 12(b)(6) context, we look for
      plausibility in the complaint. In particular, we look to the specific
      allegations in the complaint to determine whether they plausibly
      support a legal claim for relief. Rather than adjudging whether a
      claim is improbable, factual allegations in a complaint must be
      enough to raise a right to relief above the speculative level.

             In addition, we must construe a pro se appellant’s complaint
      liberally. This liberal treatment is not without limits, and this court
      has repeatedly insisted that pro se parties follow the same rules of
      procedure that govern other litigants.

Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007) (citations, quotations, and

alterations omitted).

      We must first consider Mr. Schwartz’s complaint that the magistrate judge

erred in dismissing his first three counts with prejudice. He argues that

“[a]lthough a court has the inherent power to dismiss an action for want of

prosecution in order to achieve the speedy resolution of [a] case[,] [d]ismissal of

an action with prejudice is a severe sanction.” Aplt. Br. at 9. This argument must

fail because the magistrate judge did not dismiss Mr. Schwartz’s claims as a

sanction; she found that it would be futile to allow Mr. Schwartz to amend his

                                         -6-
complaint as to those claims. We therefore turn to the Mr. Schwartz’s claim that

the dismissals were improper.

      “Heck confronted the issue of § 1983 claims brought 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.” Vasquez Arroyo v. Starks, 589 F.3d 1091, 1094 (10th Cir. 2009).

Consequently, under Heck,

      to recover damages for an unconstitutional conviction or
      imprisonment a § 1983 plaintiff must prove that the conviction or
      sentence has been reversed on direct appeal, expunged by executive
      order, declared invalid by an authorized state tribunal, or called into
      question by a federal court’s issuance of a writ of habeas corpus.

Crow v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996). “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) (citing Muhammad v. Close, 540 U.S. 749

(2004) (per curiam)). In Crow, we held that Heck’s ruling applies to parole

revocations. Crow, 102 F.3d at 1087; see also Kay, 500 F.3d at 1221 (affirming

district court’s dismissal of § 1983 challenge to parole revocation under Crow).

i. Selective Prosecution

      In his first argument, Mr. Schwartz asserts that the defendants violated his

constitutional rights by seeking to have the state court revoke his probation for

                                         -7-
drinking alcohol, but not seeking to have the probations revoked of other

probationers who also drank alcohol. This is essentially an attempt to collect

compensatory and punitive damages against the defendants for selective

prosecution.

      Selective prosecution is generally a complete defense to a criminal charge.

See Kramer v. Village of N. Fond du Lac, 384 F.3d 856, 862 (7th Cir. 2004)

(“Selective prosecution and entrapment are complete defenses to a crime. If [a

defendant] had successfully asserted either one of them at his trial, [he] would not

have been convicted.”). In order to prevail on a defense of selective prosecution,

a defendant must prove

      first, that he has been singled out for prosecution while others
      similarly situated generally have not been proceeded against for the
      type of conduct forming the basis of the charge against him; and
      second, that the Government’s selection of him for prosecution was
      invidious or in bad faith and was based on impermissible
      considerations such as race, religion, or the desire to prevent the
      exercise of constitutional rights.

United States v. Davis, 339 F.3d 1223, 1228 n.3 (10th Cir. 2003) (quoting United

States v. Salazar, 720 F.2d 1482, 1487 (10th Cir. 1983)); see also United States v.

Dukehart, 687 F.2d 1301, 1303 (10th Cir. 1982) (“Selective prosecution or

enforcement is not unconstitutional if the selection is not based deliberately on an

unjustifiable categorization such as race and religion.”). This court has

recognized the availability of habeas relief for an individual in custody who

shows that the revocation of his parole was discriminatory. See Barton v. Malley,

                                         -8-
626 F.2d 151, 154-157 (10th Cir. 1980). Thus, Mr. Schwartz’s claim would seem

to be barred by Heck as an improper challenge to his probation revocation under

the guise of a § 1983 action.

      But Mr. Schwartz argues that Heck should not apply because “he was

released from the New Mexico Correction Department on November 4th, 2008,

and is not on parole or probation.” Aplt. Br. at 29. Assuming arguendo that

Heck is not applicable to § 1983 claims brought by a prisoner who is no longer

“in custody,” and therefore ineligible for habeas relief, see Jiron v. City of

Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004) (noting that Heck may not

apply when a plaintiff has no vehicle to challenge the underlying conviction, but

not deciding the question), this statement would appear to conflict with the

record.

      The November 5, 2007, order revoking Mr. Schwartz’s probation provides

that “the balance of time left remaining on probation, a period of Thirteen (13)

Months and Five (5) Days is suspended except for Three Hundred Sixty Six (366)

Days which is imposed and the Defendant is to serv[e] this time in the

Department of Corrections, followed by One (1) Year Parole.” 3 R., Vol. 1 at 23.

Thus, under the terms of the court’s order, Mr. Schwartz would still have been “in


3
       In his complaint, Mr. Schwartz asserted: “On October 30th, 2007, the
Plaintiff’s probation was revoked, and the Plaintiff was re-sentenced to eighteen
(18) months in New Mexico Corrections Department, followed by one year of
parole.” R., Vol. 1 at 6.

                                         -9-
custody” for two years from November 5, 2007. 4 See Mays v. Dinwiddie,

580 F.3d 1136, 1139 (10th Cir. 2009) (noting that “in Jones v. Cunningham,

[371 U.S. 236, 241-43 (1963),] the Supreme Court concluded that a habeas

petitioner who had been placed on parole was still ‘in custody’ under an

unexpired sentence because of the restraints and conditions set forth in the parole

order”). Because Mr. Schwartz filed his § 1983 complaint on August 10, 2009, it

appears that he was still “in custody” at that time, and could therefore have

brought his selective prosecution claim in a habeas action. See Sevier v. Turner,

742 F.2d 262, 268 (6th Cir. 1984) (holding that whether a habeas corpus

petitioner is “in custody” for habeas purposes is determined at the time the

complaint is filed).

      But even if (1) Mr. Schwartz was not on parole at the time he filed his

complaint, and (2) we were to determine that Heck is not applicable to

Mr. Schwartz’s claims, dismissal would still be appropriate. “This court can

affirm the district court’s dismissal on any ground sufficiently supported by the

record[,]” GF Gaming Corp. v. City of Black Hawk, Colo., 405 F.3d 876, 882

(10th Cir. 2005), and it is clear that Mr. Schwartz is simply asserting that it was

improper for the defendants to seek to revoke his probation when they did not

seek to revoke the probation of other probationers who also violated probation

conditions. See R., Vol. 1 at 10-11 (claiming that Mr. Schwartz knows of a

4
      There were 366 days in 2008, which was a leap year.

                                        -10-
number of other probationers who violated probation conditions without having

their probations revoked). Mr. Schwartz’s count therefore fails to raise a claim

upon which relief could be granted because “[s]elective prosecution or

enforcement is not unconstitutional if the selection is not based deliberately on an

unjustifiable categorization such as race and religion.” Dukehart, 687 F.2d at

1303.

ii. Right to Consume Alcohol

        In his second count Mr. Schwartz argued that the probation condition

imposed by the state court prohibiting the use of alcohol violated his liberty

interest in drinking alcohol. This claim is not barred by Heck because it is not

actually a claim against the defendants, because they did not impose the probation

condition about which Mr. Schwartz complains; instead, the sentencing court did.

Under New Mexico law:

               A New Mexico district court has statutory authority to place a
        convicted defendant on supervised probation. Probation is a form of
        criminal sanction; it is one point on a continuum of possible
        punishments. A court may impose reasonable conditions that deprive
        the offender of some freedoms enjoyed by law-abiding citizens.

               If the court orders probation, the court shall attach to its order
        suspending sentence such reasonable conditions as it may deem
        necessary to ensure that the defendant will observe the laws of the
        United States and the various states and the ordinances of any
        municipality. The court may require that a person on probation
        satisfy any other conditions reasonably related to his rehabilitation.
        To be reasonably related, the probation condition must be relevant to
        the offense for which probation was granted.


                                           -11-
State v. Baca, 90 P.3d 509, 516 (N.M. Ct. App. 2004) (quotations, citations, and

alterations omitted). Thus, Mr. Schwartz’s second count, which claims that

“individuals whose crimes are not alcohol related” should not “be restricted from

consuming alcohol” while on probation, R., Vol. 1 at 12, and that it is

unconstitutional to impose such a restriction, is not a collateral attack on the order

revoking his probation that would be barred by Heck. It is a direct attack on the

state court’s orders imposing the conditions of his probation and the court’s

probation revocation on those grounds. Nevertheless, affirmance of the dismissal

is still required, albeit for failure to state a claim against the defendants upon

which relief could be granted. See GF Gaming Corp., 405 F.3d at 882 (“This

court can affirm the district court’s dismissal on any ground sufficiently

supported by the record.”).

iii. Right To Be Free of Restriction on Where to Live

      Mr. Schwartz’s third point claims that the special conditions subjecting

Mr. Schwartz’s decisions as to where he lives and works to approval of the

probation officer in charge of his case, which were imposed in the court’s 2007

order suspending his sentence and placing him on probation, violated his

constitutional rights. First, the court imposed two special conditions about which

Mr. Schwartz complains: (1) “That the Defendant may transfer probation

supervision to wherever he moves to subject to the approval of the Adult

Probation Parole Officer”; and (2) “That the Defendant may obtain employment

                                          -12-
outside the 7th Judicial District subject to approval from the Adult Probation

Parole Officer.” R., Vol. 1 at 20. Neither of these conditions ordered

Mr. Schwartz to reside and seek employment in another county, they simply

allowed him to do so subject to the approval of his probation officer. Further,

Mr. Schwartz’s complaint asserts that the requirement that he reside and seek

employment in anther county was a condition that he agreed to in his plea

agreement. 5 Thus, Mr. Schwartz’s third argument is an attack against the plea

agreement’s alleged requirement that he move to another county, and the

sentencing court’s imposition of a condition that such a move be approved by the

probation officer. It is not an attack against the revocation order, which was in no

way based on a failure to comply with the plea agreement. Further, it is not an

attack against defendants; Mr. Schwartz complains that his decisions about where

to live and work were subject to their approval under the court’s order, not that

they withheld that approval in some constitutionally-defective manner. Thus,

Mr. Schwartz’s third count should also have been dismissed for failure to state a

claim against the defendants upon which relief could be granted. 6

5
       The court’s August sentencing order reflected that Mr. Schwartz had
entered a guilty plea which had been accepted by the court and filed two months
previously. A copy of the plea or plea agreement has not been provided to this
court.
6
      We acknowledge that “pro se litigants are to be given reasonable
opportunity to remedy the defects in their pleadings.” Hall v. Bellmon, 935 F.2d
1106, 1110 n.3 (10th Cir. 1991). Therefore, dismissal of a pro se plaintiff’s
                                                                     (continued...)

                                        -13-
C. Unconstitutional Seizure

      Mr. Schwartz’s final argument is that the magistrate judge erred in

dismissing his claim that the brief seizure of his storage unit violated his

constitutional rights. The judge dismissed this claim without prejudice because

he had failed to allege that the seizure caused him any injury. The legal

sufficiency of a complaint under Rule 12(b)(6) is a question of law that we review

de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236

(10th Cir. 1999).

      In his complaint, Mr. Schwartz alleged that a friend could not access his

unit. Because Mr. Schwartz was in jail during the period that the locker was

seized, the magistrate judge concluded that he therefore personally suffered no

injury due to the temporary placement of a lock. On appeal, Mr. Schwartz revises

his factual allegations. His attack on the magistrate judge’s ruling amounts to

copying the fourth count of his complaint into his appellate brief, and then

changing the factual allegations to assert that his friend who tried to enter the

6
 (...continued)
complaint for failure to state a claim “is appropriate only where it is patently
obvious that the plaintiff could not prevail on the facts alleged, and allowing
[him] an opportunity to amend [his] complaint would be futile.” Whitney v. New
Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997) (quotation omitted). But here, we
see no problem in affirming the dismissal with prejudice of Mr. Schwartz’s first
three counts on the ground that they failed to state a claim upon which relief
could be granted. His first count is based upon the mistaken belief that disparate
treatment is per se discriminatory and his second and third counts do not raise
claims against the defendants. Amendment of Mr. Schwartz’s complaint as to
these points would be futile.

                                         -14-
storage unit was doing so at Mr. Schwartz’s request and that he suffered damages

from his friend not being able to access the locker. But in reviewing the

dismissal, “all facts alleged in the complaint are taken as true and all reasonable

inferences are indulged in favor of the plaintiffs.” GF Gaming Corp., 405 F.3d at

881 (emphasis added). Mr. Schwartz may not accuse the magistrate judge of

dismissing in error based on factual allegations that were not before her.

D. Motion to Proceed IFP on Appeal

      Finally, we must address Mr. Schwartz’s motion to proceed IFP on appeal.

“A motion to proceed ifp on appeal, supported by required documents, must be

made in the first instance to the district court.” Boling-Bey v. U.S. Parole Com’n,

559 F.3d 1149, 1154 (10th Cir. 2009) (citing Fed. R. App. P. 24(a)(1)). Here, the

magistrate judge denied Mr. Schwartz’s motion and certified that Mr. Schwartz’s

appeal was not in good faith. Under Section 1915, “[a]n appeal may not be taken

in forma pauperis if the trial court certifies in writing that it is not taken in good

faith.” 28 U.S.C. § 1915(a)(3).

      Mr. Schwartz first claims to be appealing this certification, but Rule

24(a)(5) “establishes a subsequent motion in the court of appeals, rather than an

appeal from the order of denial or from the certification of lack of good faith, as

the proper procedure for calling in question the correctness of the action of the

district court.” See Fed. R. App. P. 24 advisory committee’s notes (1967). Thus,

“a party who seeks in forma pauperis status and is certified by the district court as

                                          -15-
not appealing in good faith may nonetheless move this court for leave to proceed

on appeal in forma pauperis pursuant to the mechanism set forth in Rule

24(a)(5).” Rolland v. Primesource Staffing, L.L.C., 497 F.3d 1077, 1079

(10th Cir. 2007).

      Mr. Schwartz has filed a motion with this court to proceed IFP on appeal.

“Our consideration of an appropriate and timely motion is not a review of the

district court’s denial, but an original consideration.” Boling-Bey, 559 F.3d at

1154. To proceed IFP on appeal “an appellant must show a financial inability to

pay the required filing fees and the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.”

DeBardeleben v. Quinlan, 937 F.2d 502, 505 (10th Cir. 1991). Mr. Schwartz has

not shown the existence of a reasoned, nonfrivolous argument on the law and

facts in support of the issues raised on appeal.

                                 III. CONCLUSION

      The judgment of the district court is AFFIRMED. Mr Schwartz’s motion to

proceed IFP on appeal is DENIED.



                                                    Entered for the Court



                                                    David M. Ebel
                                                    Circuit Judge


                                         -16-
