                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               JUN 18 1998
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 DEMETRIO MUNOZ,

          Plaintiff-Appellant,

 v.                                                         No. 98-2002
                                                     (D.C. No. CIV-97-1337-BB)
 J. LEE CATHEY, Attorney at Law,                             (D. N.M.)
 Carlsbad, NM; MARK L. PICKERING,
 District Attorney, Carlsbad, NM; JAMES
 L. SHULER, District Court Judge,
 Carlsbad, NM; RUBEN MONTEZ,
 Narcotics Agent,

          Defendants-Appellees.


                                 ORDER AND JUDGMENT*


Before SEYMOUR, Chief Judge, BRORBY, and BRISCOE, 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); 10th Cir. R. 34.1.9. Therefore, the case is 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          This order and judgment is not binding precedent, except under the doctrines of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. 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.
       Demetrio Munoz appeals the district court’s order dismissing his 42 U.S.C. § 1983

action. We affirm.

       Munoz brought his § 1983 action against his state trial counsel, the state district

attorney who prosecuted his case, the state court judge who presided at trial, and a state

narcotics agent who testified in the case. He claimed defendants engaged in a conspiracy

to wrongfully convict him in state court. Munoz alleged defendants met outside his

presence during a break in the trial, resulting in Munoz’ counsel failing to call a witness

to testify on his behalf and in the state narcotics agent changing his trial testimony.

Munoz sought monetary relief against defendants in their individual and official

capacities, unspecified injunctive and declaratory relief, and prospective relief. The

district court concluded Munoz’s § 1983 claim for declaratory relief and damages “calls

into question the constitutionality of the criminal conviction by which he is incarcerated,”

and dismissed the action without prejudice. Record, Doc. 6 at 2. The court also

dismissed Munoz’s claims for prospective relief.1

       To recover damages for allegedly unconstitutional convictions or imprisonment, or

for other harms caused by actions whose unlawfulness would render a conviction or a

sentence invalid, a § 1983 plaintiff must prove the conviction or sentence has been



       1
         On appeal, Munoz also claims the district court erred in failing to allow him to
object to the magistrate court’s recommendations. The record indicates the district court
referred Munoz’s claim to a magistrate, but there is no indication the magistrate issued
any recommendations before the district court dismissed the case.

                                              -2-
reversed on direct appeal, expunged by executive order, declared invalid by an authorized

state tribunal, or called into question by a federal court’s issuance of a writ of habeas

corpus. Heck v. Humphrey, 512 U.S. 477, 487 (1994). Thus, when a state prisoner seeks

damages under § 1983, the district court must consider whether a judgment in favor of

plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would,

the complaint must be dismissed unless plaintiff can demonstrate the conviction or

sentence has already been invalidated. Id. However, when a § 1983 claim is dismissed

under Heck, the dismissal should be without prejudice so if defendant is later successful

in overturning his conviction he can bring a new § 1983 action. See Fottler v. Untied

States, 73 F.3d 1064, 1065-66 (10th Cir. 1996).

       Munoz claims his conviction was unconstitutional. He has made no attempt to

comply with Heck. There is no indication in the record that his conviction or sentence

has been reversed, expunged, declared invalid, or called into question by a federal court’s

issuance of a writ of habeas corpus. Therefore, his claims for monetary and declaratory

relief were properly dismissed.

       Munoz also sought prospective relief; specifically, “resignation of all state and

private officials for violating Plaintiff’s Civil and Constitutional Rights in entering into

the conspiracy, under color of state law, in order to force integrity into processes for the

Full-Faith and Credit Clause.” Record, Doc. 1 at 6. A § 1983 plaintiff’s claim for

prospective relief does not necessarily call into question the constitutionality of the


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criminal conviction for which he is incarcerated. See Edwards v. Balisok, 117 S.Ct.

1584, 1589 (1997). Therefore, a § 1983 claim that does not “imply the invalidity of the

punishment imposed” is cognizable if plaintiff can establish standing and meet the other

necessary requirements. Id. Munoz’s claim clearly implies invalidity of his conviction

and was properly dismissed.

      AFFIRMED. The mandate shall issue forthwith.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge




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