                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 5, 2018
                         _________________________________
                                                                        Elisabeth A. Shumaker
                                                                            Clerk of Court
ANTHONY CHARLES MURPHY,

      Plaintiff - Appellant,

v.                                                         No. 18-4100
                                                  (D.C. No. 1:17-CV-00064-CW)
JUDGE THOMAS WILLMORE, First                                 (D. Utah)
District Court for Cache Co. Utah;
SPENCER WALSH, Chief Prosecutor,
Office of the District Attorney, Logan,
Utah; BARBARA LOCHMAR, Assistant
District Attorney, Office of the District
Attorney, Logan, Utah; TRAVIS ALLEN,
Detective, Smithfield City Police
Department, Utah; FNU ZITTERKOFT,
Officer, Smithfield City Police
Department, Utah,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT *
                         _________________________________

Before BRISCOE, HOLMES, and MATHESON, Circuit Judges.
                  _________________________________

      Plaintiff Anthony Charles Murphy, a Utah state prisoner appearing pro se,

filed a civil rights complaint pursuant to 42 U.S.C. § 1983 effectively challenging the

      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
validity of his arrest and subsequent criminal conviction in Utah state court. The

district court dismissed the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B).

Murphy now appeals from the order of dismissal. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm the district court’s order of dismissal and deny

Murphy’s motion for leave to proceed on appeal without prepayment of fees and

costs.

                                                I

         Murphy, who is currently incarcerated in the Sanpete County Jail in Manti,

Utah, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983 naming as

defendants the state court judge, the prosecutors, and two police officers who were

involved in his arrest in 2009 and his subsequent prosecution and conviction in state

court. Murphy alleged in his complaint that the defendants violated his constitutional

rights during the course of his arrest and ensuing criminal trial. For instance, the

complaint alleged that the state court judge violated Murphy’s rights under the

Confrontation Clause by refusing to allow him to ask certain questions of a witness.

The complaint in turn, under the heading “INJURY,” alleged that Murphy, “[d]ue to

the actions of these defendants,” had “lost [his] liberty, been subjected to public

embarrassment, lost a job [he] truly loved, lost [his] friendly neighbors, [and] the

place [he] called home.” Dist. Ct. Docket No. 3 at 5. In the section of his complaint

entitled “REQUEST FOR RELIEF,” Murphy asked for the criminal charges against

him to be “dismissed,” “retrial barred due to [government] misconduct,” and that he

be awarded “all fees associated with filing and defending th[e] case.” Id. at 6.

                                            2
      The district court reviewed the complaint before it was served on defendants

and concluded that it should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

In its memorandum decision and order of dismissal, the district court first concluded

that the state court judge named as a defendant in Murphy’s complaint was entitled to

absolute judicial immunity because he “was acting in his judicial capacity in

presiding over th[e] [criminal] case” when the alleged constitutional violations

occurred. Dist. Ct. Docket No. 16 at 2. The district court in turn concluded that the

two prosecutors named in Murphy’s complaint were “entitled to absolute

prosecutorial immunity from th[e] lawsuit.” Id. at 3. The district court also

concluded that Murphy’s claims amounted to an attack on the validity of his

underlying state criminal conviction, and were thus subject to dismissal under Heck

v. Humphrey, 512 U.S. 477, 486–87 (1994). In addition, the district court concluded

that Murphy’s “requests to have his conviction invalidated and for release from

incarceration [could] be properly raised only in a habeas corpus petition” filed

pursuant to 28 U.S.C. § 2254. Dist. Ct. Docket No. 16 at 4. Lastly, the district court

concluded that Murphy’s “search and seizure claim [wa]s untimely” because “[t]he

claim accrued on the date of the search, June 5, 2009,” and the applicable “statute of

limitations expired . . . on June 5, 2013,” nearly four years before Murphy filed his

complaint. Id.




                                           3
       Final judgment in the case was entered on June 4, 2018. Murphy filed a notice

of appeal on June 25, 2018. 1

                                                 II

       We review de novo the district court’s order dismissing Murphy’s complaint

pursuant to 28 U.S.C. § 1915(e)(2)(B). See Kay v. Bemis, 500 F.3d 1214, 1217 (10th

Cir. 2007). Section 1915(e)(2)(B) provides, in pertinent part, that in a civil action

brought by a prisoner proceeding without prepayment of filing fees, a court “shall

dismiss the case at any time if the court determines that . . . the action or appeal . . .

fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

       In considering the dismissal of a complaint pursuant to § 1915(e)(2)(B)(ii),

“[w]e employ the same standard of review . . . that we employ for Federal Rule of

Civil Procedure 12(b)(6) motions to dismiss for failure to state a claim.” Kay, 500

F.3d at 1217. “In particular, we look to the specific allegations in the complaint to

determine whether they plausibly support a legal claim for relief.” Id. at 1218



       1
         On June 11, 2018, approximately two weeks before Murphy filed his notice
of appeal, he filed motion to reconsider with the district court. The district court
issued a one-page order denying the motion to reconsider on July 10, 2018,
approximately two weeks after Murphy filed his notice of appeal. Murphy did not
file a new notice of appeal or an amended notice of appeal following the district
court’s July 10, 2018 order. Although Murphy did file a motion on August 2, 2018,
to proceed on appeal without prepayment of costs or fees, that motion did not meet
the requirements of Fed. R. App. P. 3(c) to qualify as a notice of appeal. See
generally Smith v. Barry, 502 U.S. 244, 245 (1992) (“hold[ing] that a document
intended to serve as an appellate brief may qualify as the notice of appeal required by
Rule 3.”). Consequently, we do not have jurisdiction over the district court’s July 10,
2018 order denying Murphy’s motion to reconsider.

                                             4
(quotation marks omitted). Further, when dealing with a pro se complaint, we must

construe the allegations in the complaint liberally. Id.

      Having carefully examined and liberally construed Murphy’s pro se complaint,

we agree with the district court that the complaint fails to state a claim upon which

relief can be granted. More specifically, we agree with the district court that: (1) the

doctrines of judicial and prosecutorial immunity preclude Murphy’s claims against

the state court judge and prosecutors, see Mireles v. Waco, 502 U.S. 9, 11 (1991)

(discussing judicial immunity); Imbler v. Pachtman, 424 U.S. 409, 424 (1976)

(discussing prosecutorial immunity); (2) the Supreme Court’s decision in Heck

prevents Murphy from challenging the validity of his state court conviction by way of

a § 1983 action; and (3) Murphy’s challenge to the validity of his arrest was

untimely, see Garza v. Burnett, 672 F.3d 1217, 1219 (10th Cir. 1995) (applying

Utah’s four-year residual statute of limitations to claim brought under § 1983).

      The judgment of the district court is therefore AFFIRMED. Murphy’s motion

to reconsider appointment of counsel is denied as moot.


                                            Entered for the Court


                                            Mary Beck Briscoe
                                            Circuit Judge




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