                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            FEB 1 2000
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


MARK ALAN STREPKA,

          Plaintiff-Appellant,

v.

GREG MILLER, So. Metro Task;
SCOTT JONES, So. Metro Task;
KELLY MARTIN, So. Metro Task; C.
KLOPPENBERG, So. Metro Task; J.
GORDANIER, So. Metro Task;
                                                       No. 99-1387
OFFICER COLLINS, So. Metro Task;
                                                   (District of Colorado)
JERRY ROSENBAUGH, C.B.I.;
                                                    (D.C. No. 99-Z-902)
RONALD BEATTY, Arap. Cty. S.O.;
J. FORSTER, Denver Dist. D.E.A.;
PATRICK J. SULLIVAN, JR., Sheriff;
DIRECTOR OF C.B.I.; DIRECTOR
DENVER DIST. D.E.A.; NAT’L
ADMIN. D.E.A.; CHRISTOPHER
CROSS, Arap. Cty. J.; GREG
NOZUM; PUBLIC SAFETY,
EXECUTIVE DIRECTOR OF,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *



      *
       This order and judgment is not binding precedent, except under the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.
Before BRORBY, KELLY, and MURPHY, 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). The case is

therefore ordered submitted without oral argument.

      Mark A. Strepka, proceeding pro se, appeals the district court’s dismissal,

pursuant to Younger v. Harris, 401 U.S. 37 (1971), of his § 1983 civil rights

complaint. In his complaint, Strepka alleged that he was being held at the

Arapahoe County, Colorado, Detention Facility, awaiting trial on pending

charges. He further asserted that he was subjected to an illegal, warrantless arrest

and that he should have been, but was not, brought before a judge or magistrate

within forty-eight hours for a probable cause hearing. In dismissing the

complaint, the district court noted that absent extraordinary circumstances, federal

courts are prohibited from interfering with ongoing state criminal proceedings.

See Younger, 401 U.S. at 45. Because Strepka had not made the requisite

showing of extraordinary circumstances, the district court concluded that it must

dismiss the action pursuant to Younger. On appeal, Strepka contends as follows:

(1) Younger does not extend to actions where the only requested remedy is

damages; and (2) even if Younger does apply to his complaint, the district court

should have stayed, rather than dismissed, his claims.
      Strepka’s assertion that Younger does not apply to § 1983 complaints when

the only requested remedy is damages is foreclosed by established Tenth Circuit

precedent. See Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir. 1981); Pettit

v. Whetsel, No. 99-6107, 1999 WL 586998, at *2 (10th Cir. Aug. 5, 1999).

Strepka is correct, however, in his assertion that the district court erred in

dismissing, rather than staying, his complaint. See Deakins v. Monaghan, 484

U.S. 193, 202 (1988) (“[T]he District Court has no discretion to dismiss rather

than to stay claims for monetary relief that cannot be redressed in state

proceedings.”); Myers v. Garff, 876 F.2d 79, 81 (10th Cir. 1989) (citing Deakins).

Nor can the district court’s dismissal of Strepka’s complaint be salvaged by

reference to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). See Pettit, 1999

WL 586998, at *2 (although district court’s dismissal of § 1983 damages claim

was not proper under Younger, dismissal was proper on basis of Heck). This

court recently held “[c]laims arising out of police actions toward a criminal

suspect, such as arrest, interrogation, or search and seizure, are presumed to have

accrued when the actions actually occur.” Beck v. City of Muskogee, 195 F.3d

553, 558 (10th Cir. 1999) (quotation omitted). Furthermore, the Beck court

specifically held that “nothing in Heck changes the general rule that causes of

action relating to allegedly illegal arrest arise at the time of the arrest.” Id.

Because Strepka’s § 1983 claims both relate to police actions occurring within the


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time frame of his arrest, a dismissal pursuant to Heck is not appropriate in this

particular case.

        The district court’s order of dismissal is hereby REVERSED and the case

is REMANDED to the district court to reinstate the complaint. Because the

district court dismissed the complaint sua sponte before it could be served on the

defendants, the district court should order the complaint properly served. Once

the complaint has been properly served, the district court should stay all

proceedings in the case pending the outcome of the underlying state proceedings.

Strepka’s “Motion of Ambiguity Question of Judicial Procedure” is DENIED as

moot.

                                       ENTERED FOR THE COURT:



                                       Michael R. Murphy
                                       Circuit Judge




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