Quarterman v. Crank, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

JAQUELINE QUARTERMAN,

Plaintiff - Appellant,

v.



PATRICK CRANK, Assistant United

States Attorney for the District of

Wyoming; LOUEY WILLIAMS;

CHRIS PETERS; FORREST

(FROSTY) WILLIAMS, in their

official capacity as Wyoming Attorney

General Division of Criminal

Investigation Agents,

Defendants - Appellees.

No. 00-8015

(D.C. No. 99-CV-77-B)

(District of Wyoming)

ORDER AND JUDGMENT
href="#N_*_" name="txt*">(*)

Before BALDOCK,
name="9">HENRY and LUCERO, Circuit

Judges.

Plaintiff-appellant Jacqueline Quarterman, appearing pro se, appeals the

district court's dismissal of her suit brought pursuant to 42 U.S.C. § 1983,

Bivens

v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971),

and 42 U.S.C. § 1985(2) and (3). She alleges that the defendants conducted

illegal searches and seizures of her property, used "terrorist tactics" to induce

perjured testimony, planted evidence, and entrapped and prosecuted her for

someone else's drugs. (I R. Doc. 1 at 4.) Although the complaint does not

specify, we agree with the district court that she is referring to the investigation

and her subsequent prosecution and conviction on charges of conspiracy to

distribute controlled substances, as well as various possession and distribution

charges, in the United States District Court for the District of Wyoming, No. 97-CR-24-D,

aff'd United States v. Vaziri, 164 F.3d 556 (10th Cir. 1999). The

district court dismissed the complaint for failure to state a claim. This appeal

followed.

We review de novo the dismissal of a complaint for failure to state a claim

for which relief may be granted. See Peterson v. Shanks, 149 F.3d 1140, 1143

(10th Cir. 1998). The district court dismissed most of the claims in Quarterman's

complaint based on the principles articulated in Heck v. Humphrey, 512 U.S. 477

(1994). In Heck, the Supreme Court stated that a plaintiff cannot recover

damages in a § 1983 action implicating the validity of a criminal conviction or

sentence without proof that "the conviction or sentence has been reversed on

direct appeal, expunged by executive order, declared invalid by [an authorized]

state tribunal . . . , or called into question by a federal court's issuance of a

writ

of habeas corpus . . . ." Id. at 487; see also Crow v. Penry, 102 F.3d

1086, 1087

(10th Cir. 1996) (per curiam). The holding in Heck has been extended to apply

to Bivens actions, see Crow, 102 F.3d at 1087, and to claims brought

pursuant to

42 U.S.C. § 1985, see Stephenson v. Reno, 28 F.3d 26, 26-27

& n.1 (5th Cir.

1994) (per curiam).

As to Quarterman's claims that the defendants used terrorist tactics to

induce perjured testimony, planted evidence, and entrapped and prosecuted her

for someone else's drugs, our review of the record on appeal confirms the district

court's determination that these claims implicate the validity of her conviction.

See, e.g., Crow, 102 F.3d at 1086-87 (dismissing pursuant to Heck

claims that a

probation officer falsely testified at the plaintiff's probation revocation hearing);

Parris v. United States, 45 F.3d 383, 384-85 (10th Cir. 1995) (dismissing

pursuant to Heck allegations that the government's evidence was fabricated and

false, and that the government's witnesses were lying). She has not established

that her conviction or term of imprisonment has been reversed, expunged,

invalidated, or questioned in any way. In her direct appeal, we affirmed her

conviction and sentence. See Vaziri, 164 F.3d at 569. Furthermore, her motion

to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 was

denied by the district court. See Quarterman v. United States, No. 99-1026 B

(D.

Wyo. May 24, 2000).

Allegations of an illegal search and seizure, however, do not always

implicate the validity of a conviction. The Supreme Court stated in Heck:

[A] suit for damages attributable to an allegedly unreasonable search

may lie even if the challenged search produced evidence that was

introduced in a state criminal trial resulting in the § 1983 plaintiff's

still-outstanding conviction. Because of doctrines like independent

source and inevitable discovery, and especially harmless error, such

a § 1983 action, even if successful, would not necessarily imply that

the plaintiff's conviction was unlawful. In order to recover

compensatory damages, however, the § 1983 plaintiff must prove not

only that the search was unlawful, but that it caused him actual,

compensable injury, which, we hold today, does not encompass the

"injury" of being convicted and imprisoned (until his conviction has

been overturned).

Heck, 512 U.S. at 487 n.7.

To the extent Quarterman seeks relief based on the alleged injury of her

conviction and imprisonment, her claims fall squarely within Heck. See

Crow,

102 F.3d at 1087 (dismissing pursuant to Heck Fourth and Fifth Amendment

claims alleging that a probation officer and others conspired to have search and

arrest warrants issued where the only relief sought was for damages resulting

from the arrest and related incarceration). To proceed on her search and seizure

claim at this time, she must prove that the search was unlawful and it caused

actual, compensable injury beyond the injury of being convicted and imprisoned.

See Heck, 512 U.S. at 487 n.7. The district court concluded that any claims not

presently precluded by Heck should be dismissed because her allegations are

conclusory and fail to set forth a factual basis for her claims. We agree.

Although Quarterman references the additional burden of defending against

"continued attempts of forfeiture of plaintiff's property," (I R. Doc. 1, Points &

Authorities at 4), she settled the related civil forfeiture case releasing all claims

against the government and its agents, and does not state facts sufficient to

support her allegation of ongoing attempts to initiate forfeiture proceedings. See

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (holding that "conclusory

allegations without supporting factual averments are insufficient to state a claim

on which relief can be based" (citations omitted)).

In addition to her appeal of the district court's dismissal of her complaint,

Quarterman filed a "Motion for Assignment of Appellate Judges Other Than

Those Who Decided on Appellant's Trial Appeal" requesting a different panel

than that which rejected her direct criminal appeal on the merits in Vaziri, 164

F.3d at 569, and her previous Bivens appeal in Quarterman v. Bort, No.

99-8076,

2000 WL 223598, at **1 (10th Cir. Feb. 28, 2000).
name="txt1a">(1) A judge should be

disqualified where he or she "has personal bias or prejudice concerning a party,

or personal knowledge of disputed evidentiary facts concerning the proceeding."

28 U.S.C. 455(b)(1). Prior adverse rulings in other proceedings do not

constitute grounds for disqualification. See Green v. Branson, 108 F.3d 1296,

1305 (10th Cir. 1997); United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

Furthermore, a judge's comments during those proceedings only rise to the level

of possible disqualification if "they display a deep-seated favoritism or

antagonism that would make fair judgment impossible." Liteky v. United States,

510 U.S. 540, 555 (1994); see also United States v. Young, 45 F.3d 1405, 1415

(10th Cir. 1995). There is no evidence of bias, prejudice, or of inappropriate

comments on the part of any of the judges who decided Quarterman's direct

appeal or her prior Bivens action.

We DENY Quarterman's "Motion for Assignment of Appellate Judges

Other Than Those Who Decided on Appellant's Trial Appeal" and AFFIRM

the

judgment of the district court.(2)

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Carlos F. Lucero

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. The case is unanimously ordered submitted

without oral argument

pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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.

1. We note that none of the judges who

decided Quarterman's direct appeal,

see Vaziri, 164 F.3d at 559, and only one judge who decided her prior

Bivens

action, see Quarterman, No. 2000 WL 223598, at **1, is assigned to the panel

of

judges deciding the instant appeal. Because Quarterman raises nothing but

conclusory allegations of bias and prejudice unsupported by any evidence in the

record, the fact that one judge assigned to the panel deciding this appeal also

decided her prior Bivens action is irrelevant.

2. The district court did not specify whether

its dismissal was with or

without prejudice. Pursuant to Fottler v. United States, 73 F.3d 1065, 1065-66

(10th Cir. 1996), insofar as Quarterman's claims were dismissed pursuant to

Heck, the dismissal is without prejudice.

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