                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                           JUL 27 2001

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk


 DAVID F. HAULMAN,

          Plaintiff-Appellant,

 v.

 JEFFERSON COUNTY SHERIFF
 OFFICE; ROGER KEY; JEFFERSON                          No. 00-1478
 COUNTY PROBATION OFFICE,                          (D.C. No. 00-Z-1433)
 MARIE BUSTAMANTE-SNELL;                                (Colorado)
 JEFFERSON COUNTY DISTRICT
 ATTORNEY; LAURA K. DUNBAR;
 PROGRESSIVE THERAPY
 SYSTEMS, P.C.; KRISTEN SCALES;
 WALTER T. SIMON, PH.D.,

          Defendants-Appellees.



                          ORDER AND JUDGMENT *


Before SEYMOUR and McKAY, Circuit Judges, and BRORBY, Senior Circuit
Judge.




      *
       After examining appellant’s brief and the 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) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or 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.
      David F. Haulman, a pro se state prisoner, brought this action under 42

U.S.C. § 1983 for monetary and injunctive relief against a Jefferson County

deputy sheriff, a Jefferson County probation officer, and a psychologist who

worked under a contract with Jefferson County. Mr. Haulman claims that his

constitutional rights were violated in three ways: first, by the deputy sheriff, who

did not provide him Miranda warnings and who ignored his request for counsel

when interrogating him and giving him a polygraph test; second, by the probation

officer, who did not provide Miranda warnings when preparing his presentence

report and who placed false statements in the report; and third, by the

psychologist who, during a court-ordered evaluation, did not provide Miranda

warnings, made false statements in the report and failed to include exculpatory

information. He also contends that the district attorney discussed his polygraph

test with Mr. Haulman’s wife after he was sentenced, thereby tampering with a

witness. Mr. Haulman ultimately entered into a plea agreement with state

authorities. It appears from the record that he is presently pursuing state post-

conviction relief through court-appointed counsel.

      After granting Mr. Haulman leave to proceed in forma pauperis, the district

court dismissed the action under 28 U.S.C. § 1915(e)(2)(B) as legally frivolous.

The court held that the failure to provide Miranda warnings does not give rise to

liability under section 1983, and that the only available remedy is the suppression


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of any incriminating statements. The court noted that because Mr. Haulman

entered into a plea agreement, Miranda is not applicable to his claims in any

event. The court concluded that Mr. Haulman’s remaining allegations did not,

even construed liberally in his favor, set out well-pleaded constitutional

violations.

      We conclude that Mr. Haulson is not entitled to relief on his allegations.

First, the law in this circuit is clear that the only remedy available for a Miranda

violation is the suppression of any incriminating evidence. See Bennet v. Passic,

545 F.2d 1260, 1263 (10th Cir. 1976); accord Neighbour v. Covert, 68 F.3d 1508,

1510-1511 (2d Cir. 1995). Accordingly, Mr. Haulman may not recover damages

on that claim. Second, Mr. Haulman’s claims that his requests for counsel were

ignored, that he was sentenced on the basis of false and withheld information, and

that the district attorney tampered with a witness all directly challenge the validity

of his conviction or sentence and are therefore barred by Heck v. Humphrey, 512

U.S. 477 (1994). Under Heck, in order to recover damages for an alleged

unconstitutional conviction or sentence, a section 1983 plaintiff must prove that

the conviction or sentence has been reversed or otherwise set aside. Id. at 486-87.

Mr. Haulman has made no such showing here, and his claim for damages is

therefore premature. Even if we were to construe Mr. Haulman’s request for

injunctive relief as asserting a claim under the federal habeas corpus statute, 28


                                          -3-
U.S.C. § 2254, it would still be subject to dismissal for failure to exhaust

available state court remedies.

      Accordingly, the judgment of the district court dismissing the action as

legally frivolous is AFFIRMED.

                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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