Messer v. Kelly ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 97-7144
JACKIE EDWARD MESSER,
Plaintiff - Appellant,
versus
PHILLIP KELLY; RICHARD L. VOORHEES; JERRY W.
MILLER; BILL HOGAN,
Defendants - Appellees.
Appeal from the United States District Court for the Western Dis-
trict of North Carolina, at Asheville. Graham C. Mullen, District
Judge. (CA-97-126-1-MU)
Submitted: October 21, 1997 Decided: November 17, 1997
Before MURNAGHAN and NIEMEYER, Circuit Judges, and PHILLIPS, Senior
Circuit Judge.
Affirmed as modified by unpublished per curiam opinion.
Jackie Edward Messer, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Appellant appeals from the district court's order dismissing
his 42 U.S.C. § 1983 (1994) complaint. We have reviewed the record
and the district court's opinion and find no reversible error. Ac-
cordingly, we affirm substantially on the reasoning of the district
court. Messer v. Kelly, CA-97-126-1-MU (W.D.N.C. May 27, 1997). We
note that Appellant's complaint should have been construed as an
action under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). The district court's denial of
relief was nevertheless proper because the rationale in Heck v.
Humphrey, 512 U.S. 477 (1994), applies in Bivens actions. See
Abella v. Rubino, 63 F.3d 1063, 1065 (11th Cir. 1995); Tavarez v.
Reno, 54 F.3d 109, 110 (2d Cir. 1995). We modify the dismissal to
be without prejudice to Appellant’s ability to refile his claims if
his conviction is overturned or called into question by the appro-
priate court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED AS MODIFIED
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