                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                          JUL 3 2001
                             FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    WILLIAM MCNALLY,

                 Plaintiff-Appellant,

    v.                                                 No. 00-1254
                                                   (D.C. No. 99-B-1564)
    COLORADO STATE PATROL,                               (D. Colo.)
    COLONEL LONNIE J. WESTPHAL,
    MAJOR GUY F. KING, CAPTAIN
    STEVE MYERS, TROOPER
    C.D. BALNSCET, TROOPER
    WILLIAM DREW HERRINGTON
    and TROOPER ROBERT KLADDE,
    all in their individual and professional
    capacities,

                 Defendants-Appellees.


                              ORDER AND JUDGMENT        *




Before EBEL , ANDERSON , and KELLY , Circuit Judges.




*
      This order and judgment is not binding precedent, except under the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.
       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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff William McNally brought suit in the United States District Court

for the District of Colorado pursuant to 42 U.S.C. § 1983 for alleged

constitutional violations arising from his arrest and subsequent trial and

conviction. As federal claims, plaintiff alleged that he was the victim of an

illegal stop, search and seizure, received no         Miranda warning, was falsely

arrested and imprisoned, was subjected to an unfair trial, was maliciously

prosecuted, and that defendant Colorado State Patrol failed to train and supervise

its officers. Plaintiff also asserted various state law tort claims.

       The case was transferred to a United States magistrate judge who

recommended that defendants’ motion to dismiss be granted. The district court

approved the recommendation of the magistrate judge and dismissed the action

in its entirety. On appeal, plaintiff urges the same issues he raised in the

district court. We have studied the briefs of the parties, the record on appeal,

and the applicable law and, with the following modification, we affirm for

substantially the reasons stated by the district court.




                                                -2-
      Among the claims dismissed by the district court were plaintiff’s

allegations of denial of fair trial and malicious prosecution. The court correctly

held that these claims could not be brought under § 1983 until plaintiff could

prove that the underlying convictions had been overturned by a competent state

authority. See Heck v. Humphrey , 512 U.S. 477, 486-87 (1994).     1
                                                                       In this

situation, and contrary to the treatment by the district court, claims barred by

Heck are to be dismissed without prejudice.     Fottler v. United States , 73 F.3d

1064, 1065 (10th Cir. 1996). We direct the district court to modify its judgment

to reflect the proper standard.

      As a final matter, plaintiff attempts to introduce evidence for the first

time on appeal regarding the status of his convictions. This court, however,

will not review documents not before the district court when the ruling appealed

from was made.    Boone v. Carlsbad Bancorporation, Inc.     , 972 F.2d 1545,

1549 n.1 (10th Cir. 1992). Plaintiff’s “Motion to Add Exhibit” is therefore

DENIED.




1
       To the extent plaintiff advanced a claim for false imprisonment
post-conviction, such claim, if not barred by the statute of limitations, would
be similarly precluded by Heck.

                                          -3-
      We AFFIRM the district court but REMAND with directions to MODIFY

the judgment to reflect that plaintiff’s claims, which are heretofore barred by

Heck v. Humphrey , are dismissed without prejudice. The mandate shall issue

forthwith.


                                                    Entered for the Court



                                                    Paul J. Kelly, Jr.
                                                    Circuit Judge




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