                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                  October 28, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                            FOR THE TENTH CIRCUIT


    MARK A. WINGO,

                Plaintiff-Appellant,

    v.                                                    No. 09-5174
                                             (D.C. No. 4:09-CV-00445-GKF-TLW)
    SHAWN MULLINS; RANDAL                                 (N.D. Okla.)
    DREW; TERRY TARWATER;
    TRENT HOLMAN; HOLMAN &
    ASSOCIATES,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before TACHA, LUCERO, and MURPHY, Circuit Judges.


         Mark Allen Wingo, a federal prisoner, appeals pro se from a district court

order that dismissed his civil rights complaint for failure to state a claim. He also

seeks leave to proceed in forma pauperis (IFP). We have jurisdiction under

28 U.S.C. 1291, deny IFP status, and dismiss this appeal.



*
      After examining Plaintiff-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); 10th Cir. R.
34.1(G). The case is therefore ordered submitted without oral argument. 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order and judgment is not binding precedent, except under the doctrines of law of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.
                                    B ACKGROUND 1

      While on supervised release following a federal court conviction for

uttering a counterfeit security, Wingo formed a corporation, AirGoNomics, Inc.,

and began issuing unregistered shares. Wingo contacted attorney Terry Tarwater

regarding corporate legal issues.

      In October 2007, United States Probation Officer Randal Drew learned of

AirGoNomics when searching a “Legal Defense Center” operated by Wingo.

R. at 6. While driving Wingo to his home to continue the search, Drew

purportedly accused Wingo of being dishonest, picked up a bullet, “acted as if he

would place the bullet in [Wingo’s] pocket,” and said, “Let’s [m]ake this easy.”

Id. at 9 (quotation marks omitted). Drew then said, “C’mon, can’t you take a

joke[ ]?” Id. According to Wingo, he and Drew then “exchanged words, which

ended when Drew screamed[,] ‘You’re going to burn in hell!’” Id. at 10.

      At some point, Drew contacted attorney Shawn Mullins from the Oklahoma

Securities and Exchange Commission (OSEC), who obtained a preliminary


1
        When reviewing the dismissal of a complaint, “[w]e accept all factual
allegations in the complaint as true and draw all reasonable inferences in favor of
. . . the plaintiff.” Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). But
Wingo’s complaint is prolix, often providing only a rambling narrative of events.
As such, it is largely violative of Fed. R. Civ. P. 8(a)(2)’s command that a claim
for relief contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Nevertheless, we give pro se litigants greater leeway
by construing their pleadings liberally and holding them to less stringent
standards than lawyers. See Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir.
2007).

                                         -2-
injunction against Wingo, preventing him from selling AirGoNomics shares. At

about the same time, Wingo was charged with violating the terms of his

supervised release by, among other things, selling unregistered securities and

passing himself off as an attorney.

      Ultimately, Wingo admitted the violations in federal court and he pleaded

guilty to using a fictitious title for a fraudulent purpose. In June 2008, he was

sentenced to two consecutive twenty-one month terms of imprisonment.

      In July 2009, Wingo filed a pro se 42 U.S.C. § 1983 and Bivens action 2

against Drew, Mullins, Tarwater, and Tarwater’s employer (Trent Holmes and his

law firm, Holmes & Associates). Wingo presented three claims for relief. The

first claim stated in only conclusory fashion that Mullins violated his

constitutional rights. The second claim targeted Drew for taunting him. And the

third claim was for legal malpractice against Tarwater and his employer.

      The district court granted Wingo IFP status, reviewed the complaint, and

then dismissed it sua sponte without prejudice under 28 U.S.C. § 1915(e)(2)(B)

for failure to state a claim. In doing so, the court construed Wingo’s allegations

against Drew and Mullins as including a claim that Wingo was coerced into

pleading guilty to using a fictitious title and admitting the violations of his

supervised release. The court reasoned that such a claim, if successful, would


2
     Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971).

                                          -3-
necessarily undermine the validity of his conviction and the revocation of his

supervised release, and was therefore barred by Heck v. Humphrey, 512 U.S. 477

(1994). As for the allegation that Drew taunted him, the court found the

allegation insufficient to state a constitutional violation. Finally, regarding

attorney Tarwater and his employer, the court concluded that they were merely

private actors, not liable under § 1983. But on Wingo’s motion for

reconsideration, the district court clarified that insofar as Wingo intended to sue

Tarwater and his employer under a state law negligence theory, the dismissal of

the federal claims justified not retaining jurisdiction over any state supplemental

claim.

                                      D ISCUSSION

         We review de novo a district court’s § 1915(e)(2)(B) dismissal for failure

to state a claim. See Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

In particular, we must determine whether the plaintiff’s allegations “plausibly

support a legal claim for relief” and are “enough to raise a right to relief above

the speculative level.” Id. at 1218 (brackets and quotation omitted).

         We conclude for substantially the same reasons identified by the district

court that Wingo’s complaint fails to state a plausible claim for relief. To the

extent the complaint could be construed as including a claim that Drew and

Mullins coerced him into pleading guilty and admitting violations of his

supervised release, he cannot pursue relief under either § 1983 or Bivens until his

                                           -4-
conviction and revocation are reversed or set aside. See Heck, 512 U.S. at 486-87

(holding that a convicted person cannot bring a civil action that undermines the

validity of his conviction unless “the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid . . . or called into

question by a . . . writ of habeas corpus.”); see, e.g., Connors v. Graves, 538 F.3d

373, 378 (5th Cir. 2008) (concluding that challenge to voluntariness of guilty plea

undermined plaintiff’s conviction, and was therefore barred by Heck); cf. Crow v.

Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (holding that Heck applies to parole

revocations and in both § 1983 and Bivens actions). 3

3
       Although not entirely clear, it appears that Wingo is no longer incarcerated.
The Supreme Court has not definitively answered whether Heck applies when a
prisoner is no longer “in custody” and cannot seek habeas relief. See Jiron v. City
of Lakewood, 392 F.3d 410, 413 n.1 (10th Cir. 2004). This court recently held
“that a petitioner who has no available remedy in habeas, through no lack of
diligence on his part, is not barred by Heck from pursuing a § 1983 claim.”
Cohen v. Longshore, No. 09-1563, slip op. at 11-12 (10th Cir. Oct. 19, 2010).
But Wingo was in custody at the time he filed his complaint in this matter. See
Sevier v. Turner, 742 F.2d 262, 268 (6th Cir. 1984) (holding that “in custody”
status for habeas purposes is determined at the time the complaint is filed).
Further, Wingo’s 2008 sentence for using a fictitious title included a three-year
term of supervised release, and he would seem to still be subject to that provision.
If so, he remains “in custody” as to that conviction and eligible to seek federal
habeas relief under 28 U.S.C. § 2255. See United States v. Cervini, 379 F.3d 987,
989 n.1 (10th Cir. 2004). Wingo does not argue otherwise, and he contends that
he has a § 2255 motion pending in the district court.
       But even if Heck did not apply in this case, Wingo’s allegations of coercion
are insufficient to state a claim for relief under § 1983 or Bivens. Specifically, he
alleges that he felt “pressured” and “confused” by Drew and Mullins. ROA at 15.
He also alleges that “Drew would act [as] if he was concerned in helping [me],
and then once the call ended he would contact Mullins,” “striking [me] with his
deadly poison[.]” Id. at 14. Neither “naked assertions devoid of further factual
                                                                       (continued...)

                                         -5-
      As for Wingo’s allegation that Drew taunted him with a bullet and yelled at

him, he has not stated a constitutional violation. “[B]eing subjected to nothing

more than threats and verbal taunts” does not violate the constitution. McBride v.

Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001); see, e.g., Collins v. Cundy,

603 F.2d 825, 827 (10th Cir. 1979) (per curiam) (holding that sheriff’s laughing

at inmate and threat to hang him were insufficient to state a constitutional

violation).

      Finally, insofar as Wingo claimed Tarwater and his employer committed

malpractice and violated his constitutional rights, the district court correctly

observed that private attorneys ordinarily do not act under color of state law for

§ 1983 purposes or as federal agents for purposes of a Bivens claim. See

Lemmons v. Law Firm of Morris & Morris, 39 F.3d 264, 266 (10th Cir. 1994)

(§ 1983 action against attorney); Haley v. Walker, 751 F.2d 284, 285 (8th Cir.

1984) (Bivens action against attorney). Alternatively, with Wingo’s federal

claims properly dismissed, the district court acted within its discretion in

declining to exercise supplemental jurisdiction over any state law claims.

See 28 U.S.C. § 1367(c)(3).




3
 (...continued)
enhancement” nor “a sheer possibility that a defendant has acted unlawfully” will
suffice to state a claim for relief. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)
(quotation omitted).

                                          -6-
                                    C ONCLUSION

      Wingo’s motion to proceed IFP is DENIED. See Lister v. Dep’t of

Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005) (noting that IFP status requires

not only a financial inability to pay the required filing fees, but also the existence

of a reasoned, nonfrivolous argument on the law and facts). 4 This appeal is

DISMISSED for substantially the same reasons given by the district court in its

dismissal order dated October 13, 2009. 5

                                                     Entered for the Court



                                                     Deanell R. Tacha
                                                     Circuit Judge




4
       As we deny IFP status, we need not decide the extent to which the Prison
Litigation Reform Act, 28 U.S.C. § 1915(b), applies “to a plaintiff [like Wingo]
who was in prison at the time of filing notice of the appeal, but has since been
released.” Carson v. Tulsa Police Dep’t, 266 F. App’x 763, 766 (10th Cir. 2008).
5
       It is unclear whether Wingo also challenges the district court’s order
denying his motion for reconsideration, which was construed as an Fed. R. Civ. P.
Rule 59(e) motion to amend. In any event, Wingo advances no intelligible
argument that the court abused its discretion in denying the motion. See Barber
ex rel. Barber v. Colo. Dep’t of Revenue, 562 F.3d 1222, 1228 (10th Cir. 2009).

                                          -7-
