                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                             July 26, 2007
                                    TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                             Clerk of Court


 LARRY WASHINGTON,

           Plaintiff-Appellant
 v.                                                           No. 07-6103
 RYAN T. LEONARD, Assistant District                   (D.C. No. CV-06-1274-C)
 Attorney,                                                (W. D. Oklahoma)

           Defendant-Appellee.




                                 ORDER AND JUDGMENT *


Before BRISCOE, EBEL, and McCONNELL, 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.

       Plaintiff Larry Washington, an Oklahoma state prisoner appearing pro se, appeals

from the district court’s sua sponte dismissal of his 42 U.S.C. § 1983 complaint against



       *
        This order and judgment is not binding precedent, except under the doctrines of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.
defendant Ryan Leonard. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and

affirm.

                                               I.

          On November 16, 2006, Washington filed a pro se complaint alleging that he was

“an inmate confined in [a] penal facility” located in Taft, Oklahoma. ROA, Doc. 1 at 1.

The complaint named a single defendant, Ryan Leonard, who the complaint alleged was

“employed as Assistant District Attorney” in Oklahoma City, Oklahoma. Id. The

complaint asserted a cause of action against Leonard pursuant to 42 U.S.C. § 1983, and

set forth the following factual allegations in support of that claim:

          (1). [Washington] appeared in Criminal Court on April 17, 2001, appearing
          for the State was Ryan T. Leonard a Legal Intern.
          (2). The defendant printed his name in full and initialed LI short for legal
          intern, except defendant signed the document as Asst. DA.
          (3). Documentation will indicate that defendant was not a licensed attorney
          to represent the State.
          (4). During this time to mention, [Washington] was unaware of this fact.

Id. In sum, the complaint alleged that Leonard “appeared on behalf of the state without

being qualified or license[d] . . . .” Id. at 2. These alleged actions on the part of Leonard,

the complaint alleged, “prejudiced [Washington]’s state sentence,” violated Washington’s

rights under “the state and federal constitution,” and “caused mental anguish and duress,

upon the mind of [Washington].” Id. Based upon these allegations, the complaint sought

“punitive,” “exemplary,” and “contributeable [sic] damages” against Leonard. Id. at 3.

          The case was assigned to a magistrate judge who granted Washington leave to

proceed in forma pauperis. See 28 U.S.C. § 1915(a). The magistrate judge then

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conducted an initial review of Washington’s complaint as required by 28 U.S.C. § 1915A,

and recommended that the complaint be dismissed for failure to state a claim upon which

relief could be granted. ROA, Doc. 13 at 1. In support of this recommendation, the

magistrate judge concluded that Washington “could not prevail in a § 1983 action on the

facts alleged,” id. at 4, “[e]ven if [Washington] had sufficiently alleged the violation of a

constitutional right, the face of the complaint demonstrate[d] that his claim[] [was] time-

barred by the relevant statute of limitations,” id., and

       to the extent [Washington]’s civil rights claim[] [was] construed to allege
       that his guilty plea was unlawful because the prosecutor was a legal intern
       rather than a licensed attorney, such claim [wa]s precluded from review
       because [Washington] ha[d] not shown that his conviction or sentence ha[d]
       been reversed on direct appeal, expunged by executive order, or declared
       invalid by a state or federal court.

Id. at 7 (citing Heck v. Humphrey, 512 U.S. 477, 487 (1994)). The district court

subsequently adopted the report and recommendation and dismissed Washington’s

complaint. In doing so, the district court noted that Washington had filed objections to

the report and recommendation, but had failed to “address[] the preclusion of his claim[]

under Heck v. Humphrey or the statute of limitations.” Id., Doc. 20 at 1. Washington

now appeals.

                                              II.

       We review de novo the dismissal of a complaint pursuant to § 1915A. See

McBride v. Deer, 240 F.3d 1287, 1289 (10th Cir. 2001). “Dismissal of a pro se complaint

for failure to state a claim is proper only where it is obvious that the plaintiff cannot



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prevail on the facts he has alleged and it would be futile to give him an opportunity to

amend.” Perkins v. Kansas Dep’t of Corr., 165 F.3d 803, 806 (10th Cir. 1999). In

conducting our review, we construe the pro se pleadings liberally, applying a less

stringent standard than formal pleadings drafted by lawyers. Trackwell v. United States

Gov’t, 472 F.3d 1242, 1243 (10th Cir. 2007).

       In his appellate pleadings, Washington focuses exclusively on the statute of

limitations issue, asserting that it was not until November 2004 that he learned that

Leonard was not licensed at the time of Washington’s 2001 criminal proceedings. We

find it unnecessary to resolve the statute of limitations issue because we conclude that

Washington’s § 1983 complaint is foreclosed by Edwards v. Balisok, 520 U.S. 641

(1997) and Heck. In Edwards, the Supreme Court explained that “a state prisoner’s claim

for damages is not cognizable under 42 U.S.C. § 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.”

520 U.S. at 643 (quoting Heck, 512 U.S. at 487). We have considered the allegations

underlying Washington’s complaint and agree with the district court that a judgment in

his favor would necessarily imply the invalidity of his state conviction and/or sentence.

Consequently, because Washington has not shown that either his sentence or conviction

has been invalidated, he cannot assert a cognizable claim for damages under § 1983 based

on defendant Leonard’s alleged misconduct.

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

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proceed without prepayment of the appellate filing fee is DENIED and Washington is

ordered to make immediate payment of the unpaid balance due. Washington’s motion to

amend his opening brief is granted.


                                               Entered for the Court


                                               Mary Beck Briscoe
                                               Circuit Judge




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