Roberts v. O'Bannon

Full title: HOWELL FRANKLIN ROBERTS, III, Plaintiff, v. DANIEL O'BANNON, (Individual…

Court: United States District Court, D. Colorado

Date published: May 24, 2006

Civil Action No. 06-cv-00447-BNB (D. Colo. May. 24, 2006)

Opinion

Civil Action No. 06-cv-00447-BNB.

May 24, 2006

ORDER DENYING FED R. CIV. P. 59(e) MOTION

ZITA WEINSHIENK, Senior District Judge

Plaintiff Howell Franklin Roberts, III, a state prisoner, filed a pro se "Verified Motion to Alter or Amend Judgment [sic] in Accordance with F.R.C.P. 59(e)," on May 12, 2006. In the Motion, Plaintiff objects to the Order and Judgment of Dismissal entered by the Court, on May 2, 2006, in this action. The Court must construe the Motion liberally, because Mr. Roberts is a pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10^th Cir. 1991). For the reasons stated below, the Motion will be denied.

A litigant subject to an adverse judgment, and who seeks reconsideration by the district court of that adverse judgment, may "file either a motion to alter or amend the judgment pursuant to Fed.R.Civ.P. 59(e) or a motion seeking relief from the judgment pursuant to Fed.R.Civ.P. 60(b)." Van Skiver v. United States, 952 F.2d 1241, 1243 (10^th Cir. 1991). Mr. Roberts filed the Motion within ten days after the Order and Judgment of Dismissal. Therefore, the Court will consider the Motion pursuant to Rule 59(e). See Van Skiver, 952 F.2d at 1243.

The Court dismissed the instant Complaint and action because Mr. Roberts' claim for damages is barred by Heck v. Humphrey, 512 U.S. 477 (1994). The reasons for the dismissal are discussed in detail in the May 2, 2006, Order. Mr. Roberts now contends that the Court has misread his Complaint. Plaintiff argues that Heck does not apply to his situation. He asserts that he has not been convicted of a new crime and that he was serving a mandatory parole when Defendants conducted an illegal search and seizure, which resulted in the revocation of his parole and his return to the Colorado Department of Corrections. (Mot. at 2 and 6.)

Contrary to Plaintiff's arguments, Heck does apply to proceedings that call into question the fact or duration of parole or probation. Crow v. Penry, 102 F.3d 1086, 1087 (10^th Cir. 1996) (citing Jackson v. Vannoy, 49 F.3d 175 (5^th Cir.), cert. denied, 516 U.S. 851 (1995)). Plaintiff's claim that he was subjected to an illegal search calls into question the validity of the revocation of his parole. Consequently, the dismissal without prejudice of Plaintiff's Complaint as barred by Heck is proper.

Therefore, the Court finds that Mr. Roberts fails to demonstrate a reason why the Court should reconsider and vacate the dismissal. Accordingly, it is

ORDERED that Plaintiff's Fed.R.Civ.P. 59(e) Motion, filed May 15, 2006, is DENIED.