UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CURTIS F. GIBBS; TILTA GIBBS,
Plaintiffs-Appellants,

v.

SOUTH CAROLINA DEPARTMENT OF
PROBATION, PAROLE,AND PARDON
SERVICES; CAROLE DEMPSEY,
individually and in her official
capacity as probation agent for
South Carolina Department of
Probation; MAURICE MYERS,
individually and in his official
capacity as probation agent for
South Carolina Department of
Probation; RICHLAND COUNTY, SOUTH
CAROLINA; RICHLAND COUNTY
                                       No. 97-7741
SHERIFF'S DEPARTMENT; ALLEN F.
SLOAN, individually and in his
official capacity as sheriff of
Richland County; UNKNOWN
OFFICERS OF RICHLAND COUNTY
SHERIFFS DEPARTMENT; JAMES A.
MCCAULLEY, individually and in his
official capacity as Jailer of
Richland County Detention Center;
SOUTH CAROLINA DEPARTMENT OF
CORRECTIONS; MICHAEL W. MOORE,
individually and in his official
capacity as Director of South
Carolina Department of Corrections;
JOHN NORRIS, individually and in his
official capacity as Chief Records
Officer of South Carolina
Department of Corrections; C. J.
CEPAK, Warden, individually and in
her official capacity as Warden of
Broad River Correctional Institute;
DOUGLAS TAYLOR, individually and
in his official capacity as Warden of                                 No. 97-7741
Ridgeland Correctional Institute;
WILLIE EAGLETON, individually and
in his official capacity as Associate
Warden of Ridgeland Correctional
Institute,
Defendants-Appellees.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Solomon Blatt, Jr., Senior District Judge.
(CA-96-2465-9-08)

Submitted: November 30, 1998

Decided: January 12, 1999

Before ERVIN, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Daniel R. Denton, Beaufort, South Carolina, for Appellants. Carl N.
Lundberg, Chief Legal Counsel, SOUTH CAROLINA DEPART-
MENT OF PROBATION, PAROLE AND PARDON SERVICES,
Columbia, South Carolina; William H. Davidson, II, Andrew Linde-

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mann, DAVIDSON, MORRISON & LINDEMANN, Columbia,
South Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Curtis F. Gibbs appeals from the district court's order dismissing
without prejudice Gibbs' 42 U.S.C.A. § 1983 (West Supp. 1998)
complaint, alleging violations of his Fourth Amendment right to be
free from unreasonable seizure and imprisonment and Fourteenth
Amendment right to procedural due process.1 Gibbs alleged that he
was wrongfully incarcerated pursuant to revocation orders for a 1984
conviction and a 1994 conviction. Finding no error, we affirm.

On February 8, 1984, Gibbs was convicted in Beaufort County,
South Carolina, of meter tampering ("meter case") and sentenced to
six months incarceration, the imposition of which was suspended
upon the completion of one year probation. On June 28, 1984, a war-
rant was issued for Gibbs' alleged violation of probation in the meter
case; however, Gibbs was not served with the warrant. On March 27,
1985, without being afforded notice of the revocation hearing, Gibbs'
probation was revoked in his absence.
_________________________________________________________________
1 In the district court, Gibbs also alleged that his First, Sixth, and
Eighth Amendment rights were violated, and he asserted claims under
the South Carolina Constitution and South Carolina Tort Claims Act.
Gibbs, however, has abandoned these claims on appeal because he failed
to present argument on these issues in his appellate brief. See Tucker v.
Waddell, 83 F.3d 688, 690 n.1. (4th Cir. 1996) (noting that issues not
briefed or argued are deemed abandoned). Gibbs' wife, Tilta Gibbs, was
a party below, but she is not participating in the appeal. (Appellant's br.,
at 1, n.1).

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On March 30, 1994, Gibbs was convicted of failing to return a
rented vehicle ("vehicle case") and sentenced to five years incarcera-
tion, the imposition of which was suspended upon completion of three
years probation. On September 9, 1994, a warrant was issued for
Gibbs' alleged violation of probation in the vehicle case. On Novem-
ber 8, 1995, Gibbs was arrested for issuing fraudulent checks. While
in jail for the check offense, Gibbs was served with the warrant charg-
ing the probation violation in the vehicle case. Gibbs received dis-
charge orders on the check charges on December 11, 15, and 24,
1995.

Gibbs was transported to the Richland County Detention Center
("RCDC") and confined pursuant to the probation violation warrant
issued in the vehicle case. On December 28, 1995, a bond hearing for
the revocation of probation in the vehicle case was held. Gibbs, how-
ever, was unable to satisfy bond and was returned to RCDC. On Janu-
ary 2, 1996, a copy of the March 27, 1985, probation revocation order
in the meter case was faxed to RCDC. Gibbs was subsequently trans-
ferred to the South Carolina Department of Corrections ("SCDC")
pursuant to the meter case revocation order.

On February 23, 1996, a probation revocation hearing was held in
the vehicle case and Gibbs' probation in that case was revoked. Gibbs
was sentenced to time served since November 8, 1995. At the hearing,
the probation officer also informed the court of the revocation order
in the meter case. The court refused to rule on the meter case revoca-
tion order and Gibbs was returned to SCDC.

On March 12, 1996, while at SCDC, Gibbs was served with the
June 28, 1984, probation violation warrant in the meter case. Approx-
imately two hours later, Gibbs received a copy of an order dated
March 12, 1996, affirming, without a hearing, the March 27, 1985,
revocation order. Gibbs was sentenced to time served and released
that day.

The district court dismissed Gibbs' federal claims without preju-
dice, finding that the claims were barred by Heck v. Humphrey, 512
U.S. 477 (1994), and Edwards v. Balisock, 520 U.S. 641, 65
U.S.L.W. 4359 (U.S. May 19, 1997) (No. 95-1352). 2 The district
_________________________________________________________________
2 The court declined to consider the pendent state law claims.

                    4
court found that a favorable determination on the merits of Gibbs'
claims would imply the invalidity of the probation revocation orders,
and because Gibbs has not shown that the revocation orders were
reversed, expunged, or invalidated, Gibbs' claims were not cogniza-
ble under § 1983. The district court found that Gibbs' contention that
his claims in the meter case were not barred because the probation
revocation order was null and void to be unavailing. The court rea-
soned that a determination that the meter case revocation orders were
null and void would implicate the validity of Gibbs' subsequent
imprisonment. The court further found that a successful challenge to
the meter case revocation order for a violation of procedural due pro-
cess would necessarily imply that the punishment imposed was
invalid. The court reasoned that if Gibbs could establish that he was
not afforded the process he was due in the revocation proceedings, the
revocation orders would be null and void and any imprisonment
would have been wrongful.

We review the district court's award of summary judgment de
novo. See Higgins v. E.I. Du Pont de Nemours & Co., 863 F.2d 1162,
1167 (4th Cir. 1988). Summary judgment is appropriate when the
record taken as a whole could not lead a rational trier of fact to find
for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986). We view all facts and inferences in the light
most favorable to the non-moving party. See Nguyen v. CNA Corp.,
44 F.3d 234, 37 (4th Cir. 1995). In the present case, we find that the
district court properly granted the Defendants' motion.

A prisoner may not recover damages under § 1983 for an "alleg-
edly unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid," without first having that conviction or sentence
reversed, expunged, or called into question by issuance of a writ of
habeas corpus. Heck, 512 U.S. at 486-87. The preclusive rule of Heck
has been extended to § 1983 claims challenging procedural deficien-
cies which "necessarily imply the invalidity of the judgment."
Edwards, 65 U.S.L.W. at 4361; see McGrew v. Texas Bd. of Pardons
& Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (holding action challeng-
ing validity of parole proceedings calls into question fact of confine-
ment and thus must satisfy Heck element). Further, the preclusive
effect of Heck is applicable even if the plaintiff is no longer in cus-

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tody. See Heck, 512 U.S. at 490 n.10 ("The principle barring collat-
eral attacks--a longstanding and deeply rooted feature of both the
common law and our own jurisprudence--is not rendered inapplica-
ble by the fortuity that a convicted criminal is no longer incarcer-
ated.") (dictum); see also Anderson v. County of Montgomery, 111
F.3d 494, 499 (7th Cir. 1997) (finding that the Heck bar applies even
if prisoner is no longer in custody), cert. denied, ___ U.S. ___, 66
U.S.L.W. 3193 (U.S. Nov. 3, 1997) (No. 97422); Schilling v. White,
58 F.2d 1081 (6th Cir. 1995) (applying Heck and noting that in com-
mon law tort liability, proof of the illegality of a conviction is a neces-
sary element of the § 1983 cause of action, and unless that conviction
has been reversed, there has been no injury of constitutional propor-
tion, and therefore no § 1983 action may exist).

After reviewing the parties' briefs and the applicable law, we con-
clude that the district court properly granted summary judgment to the
Defendants and dismissed Gibbs' claims without prejudice because
Gibbs' claims are precluded by Heck. We therefore affirm on the rea-
soning set forth in the district court's opinion. See Gibbs v. South
Carolina Dep't of Probation, Parole, & Pardon Servs. , No. CA-96-
2465-9-08 (D.S.C. Oct. 14, 1997). We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.

AFFIRMED

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