                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                       October 26, 2005
                                     TENTH CIRCUIT
                                                                        Clerk of Court

 CLIFTON CARTER,

           Plaintiff - Appellant,
                                                       No. 05-7025
 vs.                                            (D.C. No. CIV-03-697-WH)
                                                       (E.D. Okla.)
 DONALD ED PAYNE, Individually;
 ESTATE OF PERRY HARKDIDER,
 Individually and officially; RICHARD
 D. AMATUCCI, Individually; PAUL
 G. HESS, Individually and officially;
 SCOTT M. ANDERSON, Individually;
 RALPH MECHAM, Individually and
 officially; HOPPY DENNISON,
 Individually and officially; DENNIS
 BRYANT, Individually and officially;
 DEB PICKERING, Individually and
 officially; KEVIN WILSON,
 Individually and officially;
 MARGARET GROVE, Individually
 and officially; JOE CANTRELL,
 Individually and officially; DAN
 GREISAN, Individually and officially,

           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        This order and judgment is not binding precedent, except under the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. This 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 KELLY, O’BRIEN, and TYMKOVICH, Circuit Judges. **


      Plaintiff-Appellant Clifton Carter, an inmate appearing pro se, appeals from

the dismissal of his civil rights complaint alleging that various state and federal

officials violated his constitutional rights as a result of a search warrant executed

in 1990. The fruits of that search were later used in criminal proceedings which

led to his incarceration. The district court dismissed the complaint for failure to

state a claim on which relief could be granted because Mr. Carter’s underlying

criminal conviction had not been declared invalid and any relief in this suit for

damages would necessarily imply its invalidity. Fed. R. Civ. P. 12(b)(6); Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994).

      Mr. Carter contends that the warrant served lacked an affidavit and the

signature of the authorizing magistrate judge was forged. In addition, Mr. Carter

alleges that the warrant served is defective because it differs from the certified

copy he received from the court. We review a district court’s grant of a motion to

dismiss under Rule 12(b)(6) de novo, and uphold dismissal only when it appears

that the plaintiff can prove no set of facts that would entitle him to relief. Yanaki

v. Iomed, 415 F.3d 1204, 1207 (10th Cir. 2005). We construe Mr. Carter’s pro se


      **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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complaint liberally. Haines v. Kerner, 404 U.S. 519, 520 (1972). We may affirm

a district court’s decision on any grounds supported by the record. Aguilera v.

Kirkpatrick, 241 F.3d 1286, 1290 (10th Cir. 2001).

      After reviewing the record, we agree with the district court that to the

extent that Mr. Carter sought damages arising from his allegedly unlawful

incarceration, his suit would be barred by Heck. But Mr. Carter also appears to

be alleging other types of damages, including property damages. R. Doc. 1 at 13-

14. Heck specifically excluded from its coverage a suit for damages (where the

underlying injury was something other than incarceration) based upon an unlawful

search. Heck, 512 U.S. at 487 n.7.

      Be that as it may, we conclude that Mr. Carter has not adequately alleged a

constitutional violation. He does not challenge the underlying affidavit or

probable cause. Rather, he alleges that the magistrate judge issued two warrants

for the search of his home–one warrant, on file with the clerk of court along with

supporting affidavits, and a second warrant, which the police served upon him.

These items do not differ in any material respect, though they differ slightly in

appearance. Mr. Carter tells us he hired a handwriting expert that concluded the

warrants were signed “by the same Magistrate for the same date and location.”

See R. Doc. 27 at 5. No facts alleged, as opposed to conclusory allegations,

suggest any bad faith. Mr. Carter cites no case law or rule that requires law


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enforcement to serve the underlying affidavit at the same time as the warrant.

Rule 41 requires only that a copy of the warrant be served. See Fed. R. Crim. P.

41.

      AFFIRMED. All pending motions are denied.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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