                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                       UNITED STATES COURT OF APPEALS February 21, 2008
                                                                        Elisabeth A. Shumaker
                                     TENTH CIRCUIT                          Clerk of Court


 VIRGIL DELAINEY CARSON,

                Plaintiff - Appellant,                         No. 07-5030
           v.                                                  (N.D. Okla.)
 TULSA POLICE DEPARTMENT;                             (D.C. No. 07-CV-55-TCK-SAJ)
 MARK KENNEDY; STEVE HJELM;
 PETE SILVA, JR.; LATISHA HARPER;
 STEVE KUNZWEILER; D. KINARD; G.
 HOGAN; DANA KUEHN; M.D.
 RYDEN; M. HASSELBAR; TOM
 GILLART,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before HENRY, Chief Judge, TYMKOVICH, and HOLMES, Circuit Judges.


       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).

       Virgil Carson, while a state inmate, filed a pro se civil rights complaint pursuant to

42 U.S.C. § 1983. The district court sua sponte dismissed the complaint for failure to



       *
         This order and judgment is not binding precedent except under the doctrines of
the 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.
state a claim pursuant to the Prison Litigation Reform Act, 28 U.S.C. 1915(e)(2)(B)

(“PLRA”). Mr. Carson, who has since been released, appeals this dismissal and has

additionally filed a motion for leave to proceed on appeal without prepayment of fees (or

in forma pauperis (“IFP”)) under the PLRA, § 1915(a). Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, we affirm the district court’s dismissal and deny Mr. Carson’s

request for IFP.



                                   I. BACKGROUND

       While a state court inmate, Mr. Carson filed a pro se civil rights complaint

pursuant to 42 U.S.C. § 1983, and a motion to proceed IFP pursuant to § 1915. The

district court directed Mr. Carson to file an amended motion to proceed IFP. The district

court granted the amended motion February 19, 2007. In this same order, the district

court sua sponte dismissed Mr. Carson’s complaint without prejudice, for failure to state

a claim upon which relief may be granted, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Mr.

Carson filed a notice of appeal on February 28, 2007. Before us, Mr. Carson appeals the

district court’s dismissal of his § 1983 complaint. He was released from prison on April

4, 2007. On July 5, 2007, he filed a Motion for Leave to Proceed on Appeal Without

Prepayment of Costs or Fees under the PLRA, meeting the condition imposed by the

district court.




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                                     II. DISCUSSION

A. FAILURE TO STATE A CLAIM

       On appeal, Mr. Carson first reiterates his Fourth, Fifth, and Fourteenth

Amendment claims in a document titled, “Amended Motion To Clearify [sic] The Record

Three.” Between his original and amended complaints, he named a total of twelve

defendants. Mr. Carson alleged that his civil rights were violated in connection with his

arrest and subsequent criminal prosecution. In his original complaint, he argued (1)

failure of prosecution to investigate, in violation of his Fourth, Fifth, and Fourteenth

Amendment rights; (2) ineffective assistance of counsel, in violation of his Sixth and

Fourteenth Amendment and Confrontation Clause rights; and (3) conspiracy to convict

between the prosecution and defense counsel, in violation of his Fifth, Sixth, and

Fourteenth Amendment rights. Specifically, he claimed that false police statements led to

his incarceration, that the public defenders have “shown no interest in preparing a

defence,” and that the defendants entered into a conspiracy to convict him. Rec. doc. 1, at

6 (Complaint, filed Jan. 23, 2007). In his amended complaint, he argued that (4) Judge

Kuehn (a Tulsa County district court judge) entered into a conspiracy with the

prosecution to obtain his conviction, in violation of the Sixth Amendment; (5) Judge

Kuehn violated his Fourteenth Amendment rights acting with racial bias against Mr.

Carson; and (6) Judge Gillert (also a Tulsa County district court judge), who Mr. Carson

describes as “very racist and is well known for it,” similarly violated his Sixth and

Fourteenth Amendment rights. Rec. doc. 4, at 5 (Amended complaint, filed Feb. 6,

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2007). Second, Mr. Carson seeks to proceed IFP, although he is no longer a state

prisoner. We review each of the two contentions in turn.

       We review de novo the decision to dismiss a complaint for failure to state a claim.

Kay v. Bemis, --- F.3d ----, 2007 WL 2694053, at *2 (10th Cir. Sept. 11, 2007). We apply

the same standard of review for § 1915(e)(2)(B)(ii) dismissals for failure to state a claim

as we do for Federal Rule of Civil Procedure 12(b)(6) motions to dismiss. Id.

Specifically, “we look for plausibility in th[e] complaint.” Bell Atlantic Corp. v.

Twombly, --- U.S. ----, 127 S.Ct. 1955, 1970 (2007). While the complaint does not need

to include detailed factual allegations, “factual allegations must be enough to raise a right

to relief above the speculative level.” Twombly, 127 S.Ct. at 1964-65. We must presume

all allegations to be true and construe them in a light most favorable to the plaintiff. Hall

v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). Finally, we hold a pro se complaint to

a less stringent standard than a pleading drafted by a lawyer. Haines v. Kerner, 404 U.S.

519, 520 (1972) (per curiam). Even construing Mr. Carson’s claims liberally, we affirm

the district court’s decision to dismiss the claims against all twelve defendants for

substantially the same reasons as set forth by the district court.



1. Judges Kuehn and Gillert, Assistant District Attorneys Kunzweiler and Harper

       Tulsa County District Court Judges Kuehn and Gillert and Tulsa County Assistant

District Attorneys Kunzweiler and Harper have absolute immunity. Mireles v. Waco, 502

U.S. 9, 11-12 (1991) (holding that a state court judge has absolute immunity unless his or

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her actions were “nonjudicial,” or taken in the complete absence of all jurisdiction);

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) (holding that state prosecutors are

entitled to absolute immunity from suits for civil damages when such suits are based on

the prosecutor’s performance of functions “intimately associated with the judicial phase

of the criminal process”); Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (same).

As Judges Kuehn’s and Gillert’s actions – simply conducting legal proceedings – do not

fall under either exception the Court articulated in Mireles, we agree with the district

court that they have absolute immunity. We further agree that Mr. Carson’s claims

against the state prosecutors, Assistant District Attorneys Kunzweiler and Harper, involve

activities “intimately associated with the judicial . . . process,” so those two defendants

have absolute immunity as well. Imbler, 424 U.S. at 430-31.



2. Public Defenders Hjelm and Silva

       Mr. Carson’s attorneys, Mr. Hjelm and Mr. Silva, employed by the Tulsa County

Public Defender’s Office, are not liable under 42 U.S.C. § 1983. To be liable under §

1983, the defendant must have acted under color of state law. “[P]ublic defender[s] do[]

not act under color of state law when performing a lawyer’s traditional functions as

counsel to a defendant in a criminal proceeding.” Harris v. Champion, 51 F.3d 901, 909

(10th Cir. 1995) (quoting Polk County v. Dodson, 454 U.S. 312, 325 (1981)). Therefore,

we agree with the district court’s decision to dismiss the claims against Mr. Hjelm and

Mr. Silva.

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3. The six remaining defendants

       Mr. Carson also fails to state a claim upon which relief can be granted with respect

to the remaining six defendants. “[A] state prisoner’s claim for damages is not cognizable

under § 1983 if ‘a judgment in favor of the plaintiff would necessarily imply the

invalidity of his conviction or sentence,’ unless the prisoner can demonstrate that the

conviction or sentence has previously been invalidated.” Edwards v. Balisok, 520 U.S.

641, 643 (1997) (quoting Heck v. Humphrey, 512 U.S. 477, 487 (1994)). Furthermore,

“Heck precludes § 1983 claims relating to pending charges when a judgment in favor of

the plaintiff would necessarily imply the invalidity of any conviction or sentence that

might result from prosecution of the pending charges. Such claims arise at the time the

charges are dismissed.” Beck v. City of Muskogee Police Dep’t, 195 F.3d 553, 557 (10th

Cir. 1999). The district court found that a judgment in favor of Mr. Carson on any of his

claims challenging the constitutionality of his, at the time, ongoing incarceration due to

the criminal charge then pending in Tulsa County District Court “necessarily impl[ies] the

invalidity of his conviction or sentence.” Rec. doc. 8, at 9 (Dist. Ct. order filed Feb. 19,

2007) (quoting Heck, 512 U.S. at 487)). We agree with the district court’s analysis, and

affirm its decision to dismiss Mr. Carson’s claims against the remaining defendants.



 B. MOTION FOR LEAVE TO PROCEED ON APPEAL WITHOUT PREPAYMENT

       Under the PLRA:

       [I]f a prisoner brings a civil action or files an appeal in forma pauperis, the

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       prisoner shall be required to pay the full amount of a filing fee. The court shall
       assess and, when funds exist, collect, as a partial payment of any court fees
       required by law, an initial partial filing fee . . . .

28 U.S.C. § 1915(b)(1). The process for a non-incarcerated indigent litigant is different:

if the court grants a motion to proceed IFP, the litigant does not have to pay the full

amount of the filing fees. This court has yet to answer whether the PLRA’s filing fee

requirement applies to a plaintiff who was in prison at the time of filing notice of the

appeal, but has since been released.

       Our sister circuits are split on this issue. Some have held that if a complainant is a

prisoner when he files an action or appeal, then the PLRA’s filing fee requirement

applies. See, e.g., Gay v. Tex. Dep’t of Corr. State Jail Div., 117 F.3d 240, 242 (5th Cir.

1997) (“That Gay was released from prison after he filed his notice of appeal is

irrelevant.”); In re Smith, 114 F.3d 1247, 1251 (D.C. Cir. 1997) (“If a litigant is a prisoner

on the day he files a civil action, the PLRA applies.”); Robbins v. Switzer, 104 F.3d 895,

897 (7th Cir. 1997) (“[Robbins’] current status does not alter the fact that he was a

prisoner when he filed the appeals.”). These cases rely on the plain language of the

statute, holding that the meaning of the PLRA is clear: “if a prisoner brings a civil action

or files an appeal in forma pauperis, the prisoner shall be required to pay the full amount

of a filing fee.” 28 U.S.C. § 1915(b)(1).

       Other circuits disagree. The Second Circuit, for instance, has held that the PLRA’s

requirements do not apply once a prisoner is released. That court held that the PLRA

provides “that the required partial fee payments are to be made only while the prisoner

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remains in prison, and that, upon his release, his obligation to pay fees is to be

determined, like any non-prisoner, solely by whether he qualifies for i.f.p. status.”

McGann v. Comm’r, Soc. Sec. Admin., 96 F.3d 28, 30 (2d Cir. 1996). The McGann court

held that this construction better conforms to the overall structure of the PLRA, and that

an alternative reading would mean that the litigant would have to pay the entire balance

of the fee in a single payment upon release from prison—“a result that would be more

onerous than that imposed on those who remain incarcerated.” Id.

       The Fourth and Sixth Circuits agree. DeBlasio v. Gilmore, 315 F.3d 396, 399 (4th

Cir. 2003) (“A released prisoner should not have to shoulder a more difficult financial

burden than the average indigent plaintiff in order to continue his lawsuit.”); McGore v.

Wrigglesworth, 114 F.3d 601, 612-13 (6th Cir. 1997) (finding a “facial inconsistency” in

the PLRA and holding “[a]fter release, the obligation to pay the remainder of the fees is

to be determined solely on the question of whether the released individual qualifies for

pauper status”) (internal quotation marks omitted).

       As we hold Mr. Carson’s claim to be frivolous, we need not decide whether the

PLRA’s filing fee requirement applies to him now that he has been released. If it does

apply, Mr. Carson would owe the full filing fee. If it does not apply, he would only be

excused from paying the full filing fee if we were to grant IFP. Because we hold that his

claims are frivolous, we would deny IFP and Mr. Carson would owe the full filing fee just

as if the PLRA did apply. Since Mr. Carson owes the full filing fee under either scenario,

we decline to decide whether the PLRA’s filing fee requirements apply to a complainant

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who is incarcerated at the time he files notice of appeal but is subsequently released.



                                   III. CONCLUSION

       Accordingly, we AFFIRM the district court’s dismissal of Mr. Carson’s complaint

for failure to state claim, and DENY his request to proceed IFP.



                                                         Entered for the Court,



                                                         Robert H. Henry
                                                         Chief Judge




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