Hedrick v. Flores ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40478
Summary Calendar
WILLIAM LEE HEDRICK,
Plaintiff-Appellant,
versus
MARY ANN FLORES, Investigator, Cameron County Sheriff
Department; ROBERTO RODRIGUEZ, Deputy Sheriff, Cameron
County Sheriff Department; CARLOS DEL BOSQUE, Deputy
Sheriff, Cameron County Sheriff Department; OFELIA CORONADO,
Landlord, 858 Puebla Street, Apt. B, Brownsville, TX 78200;
JEFFREY T. STRANGE, Assistant District Attorney for Cameron
County, Texas; JOHN DOE, #1 Deputy Constable, Constable
Cameron County, Texas; JOHN DOES, (2883) Four Deputy Sheriffs
of Cameron County, Texas; BILL DOE, John Doe, #3 Deputy
Sheriff Cameron County, Texas; P. VELA, Deputy Sheriff of
Cameron County, Texas; J. GONZALES, Deputy Sheriff
Brownsville, TX,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
No. B-98-CV-120
December 22, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
William Lee Hedrick appeals, pro se, the dismissal of his 42
U.S.C. § 1983 action for failure to state a claim. Hedrick’s
motions to compel discovery and obtain legal assistance and for a
default judgment as to Appellee Ofelia Coronado are DENIED.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Hedrick seeks damages, claiming defendants violated his
constitutional rights, resulting in his conviction. The district
court correctly ruled that this action challenges Hedrick’s
underlying conviction and is, therefore, barred under Heck v.
Humphrey, 512 U.S. 477, 486-87 (1994) (plaintiff may not recover
damages for claimed unconstitutional imprisonment absent showing
conviction or sentence has been reversed or invalidated by state
court or called into question by issuance of federal habeas
relief).
Hedrick also maintains the district court should not have
dismissed his action prior to ruling on his pending § 2254
petition. However, in providing that a § 1983 claim does not
accrue until a conviction is reversed or otherwise called into
question, Heck clearly contemplates that dismissals may occur while
post-conviction challenges are pending. Heck, 512 U.S. at 489-90
(“no cause of action [exists] under § 1983 unless and until the
conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus”).
With respect to Coronado, the district court properly
considered sua sponte the claims against her, despite both her
failure to answer the complaint and the lack of any discovery.
See 28 U.S.C. § 1915(e)(2)(B)(ii); Bazrowx v. Scott, 136 F.3d 1053,
1054 (5th Cir.) (district court may dismiss § 1983 action sua
sponte if action does not state claim and if procedure employed is
fair), cert denied, 525 U.S. 865 (1998). The court concluded that
Coronado was not liable under § 1983 because she was not a state
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actor. We need not reach that issue because, even if she were,
Hedrick’s claims against her would be barred under Heck. See Berry
v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (appeals court may
affirm dismissal for failure to state claim on any basis supported
by record).
Finally Hedrick contends that the magistrate judge erred in
denying him an evidentiary hearing on his motion to suppress
certain evidence. He did not appeal the denial to the district
court; therefore, this court has no jurisdiction. See Colburn v.
Bunge Towing, Inc., 883 F.2d 372, 379 (5th Cir. 1989).
JUDGMENT AFFIRMED; MOTIONS DENIED
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