                                                                         FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                 February 9, 2011
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                    Clerk of Court
                                 TENTH CIRCUIT



 ROBERT THOMAS JOHNSON, SR.,

               Plaintiff-Appellant,                      No. 10-3242
          v.                                              (D. of Kan.)
 POTTAWOTOMIE TRIBAL POLICE                    (D.C. No. 5:10-CV-03104-SAC)
 DEPARTMENT, CHIEF SCOTT,
 CHIEF BOSWELL, and JOHN
 HURLA, K-9 Officer,

               Defendants-Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges. **


      Robert Johnson, a federal prisoner appearing pro se, appeals the dismissal

of his claims brought under 42 U.S.C. § 1983. The district court dismissed

Johnson’s complaint under 28 U.S.C. § 1915A as frivolous and for failure to state

a claim under § 1983. Having 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         This order and judgment is not binding precedent except under the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.
                                  I. Background

      Johnson’s § 1983 claims arise from incidents that occurred in August 2007

after he left the parking lot of the Prairie Band Casino and Resort, located in

Kansas. While Johnson’s car was parked in the casino parking lot, Defendant

John Hurla—then a K-9 officer in the Pottawotomie 1 Tribal Police Department

(PTPD)—deployed a drug dog to Johnson’s vehicle and the dog indicated the

presence of illegal narcotics. Based on the probable cause arising from the drug

dog’s deployment, Johnson was stopped, his vehicle was searched, and he was

arrested. Other officers assisted with the drug-dog deployment, Johnson’s arrest,

and the search of his vehicle. Illegal drugs and drug paraphernalia were found in

Johnson’s vehicle.

      Johnson was charged under tribal law for possession of narcotics, but in

February 2008, Kansas dismissed the charges. In March 2008, the United States

unsealed an indictment against Johnson, charging him with violating 21 U.S.C.

§ 841. After two suppression hearings and shortly before his trial, Johnson




      1
          From our review of the record, it appears three variations of
“Pottawotomie” have been used in this case. Johnson—in his complaint—and the
district court—on its docket—use “Pottawotomic.” See R., Vol. I at 1, 10. The
district court—in its show-cause order and order dismissing Johnson’s
complaint—uses “Pottawotomie.” See R., Vol. I at 98, 127. The tribal nation and
the Prairie Band Tribal Police use “Potawatomi.” See R., Vol. I at 61, 64. In this
opinion, we assume all three spellings refer to the same entity and will refer to
the tribe using the spelling in the district court’s order, “Pottawotomie.”

                                         -2-
entered into a plea agreement, pleaded guilty, and was sentenced to thirty-eight

months’ imprisonment.

      Johnson brought this § 1983 suit against the PTPD and PTPD employees

Chief Scott, Chief Boswell, and Hurla, alleging that certain actions committed by

the PTPD and Hurla before and during Johnson’s stop, search, and arrest deprived

Johnson of his constitutional and civil rights. His claims rested on allegations

that the PTPD improperly hired and employed Hurla as a K-9 officer and a

dispatcher because Hurla was ineligible as a matter of Kansas state law for

certification as a law enforcement officer.

      In October 2001, when Hurla was hired by the PTPD, he was subject to a

two-year diversion agreement—which he disclosed on his employment

application—related to charges from 1999 of burglary and felony theft. From

May 2007 through April 2009, Hurla was a K-9 officer with the PTPD and at

other times he was a dispatcher and an officer. In June 2009, the Kansas

Commission on Peace Officers Standards and Training issued a final order

retroactively revoking Hurla’s law enforcement officer certification. While the

Commission noted Hurla’s exemplary performance, Kansas state law provides

that individuals who were diverted from felony crimes after July 1995 are

ineligible to serve as law enforcement officers. See K AN . S TAT . A NN . § 74-

5605(a)(3).




                                          -3-
      In his § 1983 complaint, Johnson contended (1) Hurla lacked legal

authority and jurisdiction to perform the drug-dog deployment that provided

probable cause for Johnson’s stop, search, and arrest; (2) the defendants conspired

to suppress exculpatory information regarding Hurla’s ineligibility and Johnson

only discovered this “new evidence” in February 2010; (3) defendants provided

false, fraudulent, and misleading evidence to the federal grand jury and district

court; and (4) defendants Scott and Boswell committed outrageous misconduct,

misused positions of public trust, obstructed the legal process, and used their

position to conceal illegal acts and misconduct when knowingly hiring a felon

(Hurla), continuing to employ Hurla after the revocation of his certification, and

improperly permitting Hurla to access police records, weapons, and other items

only available to the police.

      Because Johnson was a prisoner seeking redress from a governmental entity

and governmental officers or employees, the district court screened his complaint

under 28 U.S.C. § 1915A to determine if any portion was frivolous, failed to state

a claim upon which relief may be granted, or sought relief from a defendant

immune from such relief. The district court determined Johnson’s complaint was

subject to dismissal because (1) the claims relating to his criminal conviction may

only be raised in a habeas corpus petition; (2) the claims for money damages

based on federal law were barred either by Heck v. Humphrey, 512 U.S. 477

(1994) or the applicable statute of limitations; and (3) the other claims did not

                                          -4-
allege facts demonstrating a violation of § 1983 and, at most, amounted to

violations of Kansas state law. Rather than immediately dismissing the

complaint, the court gave Johnson thirty days to show cause why it should not be

dismissed. Johnson submitted a reply, and the court dismissed the complaint

under § 1915A as frivolous and for failing to state a claim under § 1983.

      On appeal, Johnson makes several arguments (1) defendants fraudulently

concealed evidence of Hurla’s prior felony record and the revocation of his law

enforcement certificate; (2) the claims the district court found were not premature

under Heck are not time-barred because Johnson’s § 1983 complaint was filed

within two years of his discovery of the revocation of Hurla’s law enforcement

certificate; (3) Johnson has standing to pursue claims against the defendants for

their illegal practices regarding Hurla’s hiring and employment; (4) probable

cause for Johnson’s arrest was unlawfully established and his arrest, search, and

seizure were illegal because Hurla, at the time, was ineligible under Kansas law to

be a law enforcement officer and, later, had his law enforcement certificate

retroactively revoked; and (5) Johnson’s § 1983 claims for damages relating to

Kansas’s decision to charge him with state law offenses, but ultimately not

prosecute, should not be barred by Heck.

                                  II. Discussion

      Johnson is proceeding pro se, and thus we construe his pleadings liberally.

See Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007). After a careful review

                                         -5-
of the record, we find the district court correctly dismissed Johnson’s complaint

under 28 U.S.C. § 1915A because the complaint was frivolous and failed to state

a claim under § 1983 upon which relief may be granted.

A. Claims Barred by Heck

      After careful consideration, we find all of Johnson’s claims are barred by

Heck v. Humphrey, 512 U.S. 477 (1994), because each necessarily implies the

invalidity of Johnson’s sentence.

      Under Heck, a plaintiff cannot assert a § 1983 claim that, if successful,

would necessarily imply the invalidity of a previous conviction or sentence,

unless the plaintiff can demonstrate favorable termination of the prior conviction

or sentence. Id. at 487. As the Supreme Court held:

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

Id. at 486–87. 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).

      Underlying all of Johnson’s claims is the allegation that he was subject to

an illegal arrest and search without probable cause because Hurla was not

                                         -6-
qualified to be a law enforcement officer under Kansas state law. Johnson argues

that, since Hurla’s law enforcement certificate was retroactively revoked, “any

actions he undertook [as a K-9 officer] were not only illegal, but were also

unconstitutional.” Aplt’s Br. at 4. Johnson’s argument, assuming it were true,

would necessarily imply the invalidity of his sentence because it would have been

based upon evidence gathered during an illegal arrest and thus would have to be

suppressed. See United States v. Jarvi, 537 F.3d 1256, 1260 (10th Cir. 2008). 2

Johnson’s claim is precisely the type that Heck mandates should be pursued

through a petition for habeas corpus and not a § 1983 complaint.

      An aspect of each of Johnson’s specific claims necessarily implies the

invalidity of his sentence. Johnson’s first two claims relate to the purported “new

evidence” regarding the revocation of Hurla’s law enforcement certificate that

Johnson acquired after his plea. He asks us to consider the information as

evidence the defendants concealed Hurla’s illegal appointment as a law

enforcement officer and gave false and misleading testimony at Johnson’s

suppression hearing. But a claim of newly discovered evidence, and of false and

misleading testimony at a suppression hearing, is a direct challenge to Johnson’s




      2
         When a search is unlawful only because it violates state law, the fruit of
the search need not be suppressed. See United States v. Mendoza, 468 F.3d 1256,
1260 (10th Cir. 2006). But Johnson is contending that the officers’ actions not
only violated state law but also the federal Constitution.

                                         -7-
sentence, which is barred by Heck. 3 Additionally, Johnson’s claim the evidence

was fraudulently concealed is belied by the appendix to Johnson’s memorandum

of law supporting his § 1983 complaint, in which he includes a letter

demonstrating he obtained this “new evidence” through an open records request.

R., Vol. I at 67. That is, this information was publicly available and not hidden

by the defendants. Johnson also contends he discovered this new evidence on

February 10, 2010. But this is the date Johnson received the response to his open

records request, not when the facts were available for discovery.

      In his third claim, Johnson asserts he has standing to bring a § 1983 claim

against the defendants based upon PTPD’s hiring and continued employment of

Hurla despite his ineligibility to serve as a law enforcement officer. This claim

fails for two reasons. First, it relies upon the “new evidence” discussed above

regarding Hurla’s hiring and certification as a law enforcement officer. Second,

to have standing to bring this claim, Johnson must demonstrate injury related to

the defendants’ actions. Johnson alleges the defendants’ deliberate indifference

and gross negligence regarding Hurla’s employment caused his injury—“the

deprivation of [Johnson’s] civil rights”—because “any actions taken on behalf of

the public by Mr. Hurla will violate . . . constitutional rights and liberties.”

Aplt’s Br. at 11. Setting aside whether Hurla’s employment itself violates a


      3
        In his § 1983 complaint, Johnson states his claim “is the direct result of
newly discovered evidence . . . .” R., Vol. I at 8.

                                          -8-
citizen’s constitutional rights, the personalized injury alleged by Johnson relates

to his arrest, search, and seizure by Hurla. However, to recognize this

injury—that the arrest, search, and seizure violated Johnson’s constitutional

rights—would necessarily imply the invalidity of Hurla’s sentence. Thus

Johnson’s third claim is also barred under Heck.

      Johnson’s fourth claim is clearly barred by Heck because he contends the

probable cause for his arrest, search, and seizure was unlawfully established. He

asserts Hurla was not qualified as a K-9 officer to use a drug dog to determine

probable cause, and therefore his arrest, search, and seizure were unreasonable.

As such, the allegations of Hurla’s illegal activity necessarily imply Johnson’s

sentence is invalid, and the claim is barred under Heck. 4

      Johnson’s final claim is for money damages based upon economic and other

costs related to his incarceration on the Kansas state drug charges, which were

ultimately dismissed by the state. He asserts these charges were favorably

terminated and thus his claim should not be barred by Heck. However, Johnson

contends, “[t]hese hardships were caused by the illegal arrest without probable

cause by the defendants.” Aplt’s Br. at 15. To succeed on this claim, the

arrest—which led to the federal drug charges and sentence in this case—would

      4
         We have previously acknowledged some claims of illegal search and
seizure are not automatically barred by Heck if “ultimate success on them would
not necessarily question the validity of a conviction.” Beck v. City of Muskogee
Police Dep’t, 195 F.3d 553, 558 (10th Cir. 1999). However, that is not true of
Johnson’s claims.

                                         -9-
have to be illegal. This determination would necessarily imply the invalidity of

his sentence based on the federal drug charges and therefore the claim is barred

by Heck.

      Generally, a federal prisoner, through a habeas corpus petition under 28

U.S.C. § 2255, may bring many of the same claims Johnson asserts in his § 1983

complaint. But Johnson waived his right to challenge his sentence through a

habeas corpus petition in a knowing and voluntary plea agreement. See United

States v. Johnson, 369 F. App’x 905, 907 (10th Cir. 2010) (finding on direct

appeal that Johnson’s appeal wavier “was not unknowing or involuntary”). 5 This

case is not an instance where a plaintiff lacks an available habeas remedy and

therefore may pursue his claims through a § 1983 suit. See Cohen v. Longshore,

621 F.3d 1311, 1317 (10th Cir. 2010) (“a petitioner who has no available remedy

in habeas, through no lack of diligence on his part, is not barred by Heck from

pursuing a § 1983 claim.”). Johnson is attempting to seek relief through a § 1983

complaint as an end-run around the appeal waiver in his plea agreement. Under

Heck, Johnson cannot seek relief for his claims under § 1983, so his complaint

was properly dismissed.




      5
         Even despite the waiver, Johnson filed a direct appeal as well as a habeas
petition, both of which were unsuccessful.

                                        -10-
B. Other § 1983 Claims

      Without identifying the specific claims, the district court held some of

Johnson’s claims were not premature under Heck. 6 To the extent these claims do

not imply the invalidity of his sentence and are not barred by Heck, we agree with

the district court that Johnson fails to demonstrate standing to assert the claims,

the claims are barred by the statute of limitations, or they otherwise fail to state a

claim upon which relief may be granted under § 1983. Johnson does not allege an

injury other than the illegal arrest and search—which, as discussed above, makes

his claim improper under Heck—and therefore he has not demonstrated standing

for his claim against the defendants based upon their hiring and employment of

Hurla. Additionally, Johnson makes no specific allegations as to how the

defendants allegedly concealed information regarding Hurla and thus has not

shown why his § 1983 should accrue any later than the date of his stop, search,


      6
          It is unclear which of Johnson’s claims in his § 1983 complaint the
district court believed did not imply the invalidity of his conviction. In his
complaint, Johnson made three explicit claims for relief: (1) Hurla lacked the
legal authority and jurisdiction to perform the drug-dog deployment that
supported probable cause for his stop, search, and seizure; (2) defendants
conspired to suppress exculpatory evidence regarding Hurla’s ineligibility; and
(3) defendants committed fraud and obstructed the legal process, which led to
Johnson’s illegal arrest and incarceration and resulted in a failure to supervise,
abuse of process, and obstruction of justice. Success on any of these
claims—lack of probable cause, suppression of evidence, or fraud and obstruction
leading to an illegal arrest—would imply the invalidity of Johnson’s conviction.
The district court, however, identified facts in Johnson’s allegations that it
considered to be an implicit fourth claim relating to the hiring and continued
employment of Hurla despite his ineligibility.

                                         -11-
and arrest. See Beck v. City of Muskogee Police Dep’t, 195 F.3d 553 (10th Cir.

1999). Since he did not file his complaint within the two-year statute of

limitations, any remaining claims are time-barred. See Wallace v. Kato, 549 U.S.

384, 387 (2007) (statute of limitations applicable to § 1983 actions is what state

law provides for personal injury torts); K AN . S TAT . A NN . § 60-513(a)(4) (two-year

statute of limitations for personal injury torts).

      Finally, Johnson’s allegations center on violations of Kansas state law

regarding the hiring and employment of law enforcement officers. While these

allegations could support a claim under Kansas state law—a matter upon which

we express no opinion—Johnson has alleged no constitutional violation under

§ 1983 upon which relief may be granted. See D.L. v. Unified Sch. Dist. No. 497,

596 F.3d 768, 776 (10th Cir. 2010) (“§ 1983 affords a remedy for violations of

federal law and does not provide a basis for redressing violations of state law.”)

(quotations omitted). State law determinations do not control whether probable

cause for an arrest exists under the Fourth Amendment. See United States v.

Turner, 553 F.3d 1337, 1346 (10th Cir. 2009) (“[I]f officers have probable cause

to believe that a crime has been committed in their presence, they may arrest and

search incident to that arrest without violating the Fourth Amendment, even if

such police action is not authorized by state law.”) (citing Virginia v. Moore, 553

U.S. 164, 178 (2008)). Johnson has made no showing—other than his claims




                                          -12-
regarding Hurla’s certification under Kansas state law—that the police lacked

probable cause for his arrest and thus has failed to state a claim under § 1983.

                                  III. Conclusion

      For the foregoing reasons, we AFFIRM the dismissal of Johnson’s

complaint. We DENY Johnson’s motion to supplement the record on appeal, and

we DENY Johnson’s motion to abate case.

                                                    Entered for the Court

                                                    Timothy M. Tymkovich
                                                    Circuit Judge




                                         -13-
