                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                           OCT 17 2000
                                  TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                Clerk

 EUGENE NELSON,

               Plaintiff-Appellant,                     No. 99-2301
          v.                                                D. N.M.
 MIKE HENDERSON, Parole Officer,                (D.C. No. CIV-98-1482-M)

               Defendant-Appellee.


                             ORDER AND JUDGMENT         *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.          **




      Eugene Nelson, a prisoner in the custody of the New Mexico Department

of Corrections, filed this pro se civil rights action against three New Mexico

Department of Corrections officials: Mike Henderson, Sara Drillin, and



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

      **
         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.
Adrienne Jackson. The district court dismissed Mr. Nelson’s claims against Ms.

Jackson and Ms. Drillin sua sponte, reasoning that Ms. Jackson was entitled to

absolute immunity as a member of the parole board and that Mr. Nelson’s

complaint contained no allegations against Ms. Drillin.   See Rec. vol. I , doc. 17

at 2.

        Mr. Nelson advanced three claims against the remaining defendant, New

Mexico parole officer Mike Henderson: (1) that Mr. Henderson placed an ankle

bracelet on him for electronic monitoring, causing a preexisting ankle injury not

to heal properly and imposing cruel and unusual punishment in violation of the

Eighth Amendment; (2) that Mr. Henderson caused Mr. Nelson’s parole to be

revoked on the basis of a positive urine test for alcohol and did not allow Mr.

Nelson to have the urine retested; and (3) that Mr. Henderson improperly

required him to attend a treatment program for sex offenders, causing his parole

to be revoked when he stopped attending the program.       Adopting the

magistrate’s report and recommendation, the district court applied Fed. R. Civ. P.

12(b)(6) to dismiss Mr. Nelson’s Eighth Amendment claim with prejudice and his

parole revocation claims without prejudice.       1




        1
              We construe Mr. Nelson’s “Memorandum Brief,” filed with this
court on November 30, 1999, as a notice of appeal and exercise appellate
jurisdiction. See Rodgers v. Wyoming Att’y Gen. , 205 F.3d 1201, 1204-06 (10th
Cir. 2000) (noting that pro se documents may be construed as functional
equivalents of notices of appeal).

                                              2
       Upon de novo review, see Herring v. Keenan , 218 F.3d 1171, 1174 (10th

Cir. 2000), we agree with the conclusions set forth in the magistrate’s report and

recommendation regarding Mr. Nelson’s claim about the ankle bracelet. His

allegations do not involve “the unnecessary and wanton infliction of pain”

required to constitute an Eighth Amendment violation in this context.         See

Hudson v. McMillian , 503 U.S. 1, 10 (1992) (quoting      Estelle v. Gamble , 429

U.S. 97, 102-03 (1976));    see also Perkins v. Kansas Dept. of Corrections    , 165

F.3d 803. 809-11 (10th Cir. 1999) 1998) (applying Eighth Amendment standard

to claims involving conditions of prisoner’s confinement).

       We also agree with the magistrate judge and the district court that Mr.

Henderson’s claims regarding the revocation of his parole are barred by the

Supreme Court’s decision in     Heck v. Humphrey , 512 U.S. 477 (1994). Under

Heck , when judgment for a plaintiff in a § 1983 suit “would necessarily imply the

invalidity of his conviction or sentence, . . . the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already

been invalidated.”   Id. at 487. That principle applies to claims that “call into

question the fact or duration of parole or probation.”    Crow v. Penry , 102 F.3d

1086, 1087 (10th Cir. 1996). Thus, a plaintiff seeking damages for the improper

revocation of his parole must first establish that the revocation “has been

reversed on direct appeal, expunged by executive order, declared invalid by a


                                             3
state tribunal authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.”    Heck , 512 U.S. at 487.

There are no such allegations in Mr. Nelson’s complaint. Until he obtains relief

through one of these procedures, he may not bring an action for damages.

       We therefore AFFIRM the district court’s dismissal of Mr. Nelson’s Eighth

Amendment claim with prejudice and his parole revocation claims without

prejudice.



                                                 Entered for the Court,



                                                 Robert H. Henry
                                                 United States Circuit Judge




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