Strepka v. Miller, (10th Cir. 2000)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

MARK ALAN STREPKA,

Plaintiff-Appellant,

v.



GREG MILLER, So. Metro Task;

SCOTT JONES, So. Metro Task;

KELLY MARTIN, So. Metro Task; C.

KLOPPENBERG, So. Metro Task; J.

GORDANIER, So. Metro Task;

OFFICER COLLINS, So. Metro Task;

JERRY ROSENBAUGH, C.B.I.;

RONALD BEATTY, Arap. Cty. S.O.;

J. FORSTER, Denver Dist. D.E.A.;

PATRICK J. SULLIVAN, JR.,

Sheriff; DIRECTOR OF C.B.I.;

DIRECTOR DENVER DIST. D.E.A.;

NAT'L ADMIN. D.E.A.;

CHRISTOPHER CROSS, Arap. Cty.

J.; GREG NOZUM; PUBLIC

SAFETY, EXECUTIVE DIRECTOR

OF,

Defendants-Appellees.

No. 99-1387

(District of Colorado)

(D.C. No. 99-Z-902)

ORDER AND JUDGMENT
name="txt*">(*)

Before BRORBY,
name="9">KELLY, and MURPHY, Circuit Judges.

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.

Mark A. Strepka, proceeding pro se, appeals the district court's dismissal,

pursuant to Younger v. Harris, 401 U.S. 37 (1971), of his § 1983 civil rights

complaint. In his complaint, Strepka alleged that he was being held at the

Arapahoe County, Colorado, Detention Facility, awaiting trial on pending

charges. He further asserted that he was subjected to an illegal, warrantless

arrest and that he should have been, but was not, brought before a judge or

magistrate within forty-eight hours for a probable cause hearing. In dismissing

the complaint, the district court noted that absent extraordinary circumstances,

federal courts are prohibited from interfering with ongoing state criminal

proceedings. See Younger, 401 U.S. at 45. Because Strepka had not made the

requisite showing of extraordinary circumstances, the district court concluded

that it must dismiss the action pursuant to Younger. On appeal, Strepka contends

as follows: (1) Younger does not extend to actions where the only requested

remedy is damages; and (2) even if Younger does apply to his complaint, the

district court should have stayed, rather than dismissed, his claims.

Strepka's assertion that Younger does not apply to § 1983 complaints

when

the only requested remedy is damages is foreclosed by established Tenth Circuit

precedent. See Parkhurst v. Wyoming, 641 F.2d 775, 777 (10th Cir. 1981);

Pettit

v. Whetsel, No. 99-6107, 1999 WL 586998, at *2 (10th Cir. Aug. 5, 1999).

Strepka is correct, however, in his assertion that the district court erred in

dismissing, rather than staying, his complaint. See Deakins v. Monaghan, 484

U.S. 193, 202 (1988) ("[T]he District Court has no discretion to dismiss rather

than to stay claims for monetary relief that cannot be redressed in state

proceedings."); Myers v. Garff, 876 F.2d 79, 81 (10th Cir. 1989) (citing

Deakins). Nor can the district court's dismissal of Strepka's complaint be

salvaged by reference to Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).

See

Pettit, 1999 WL 586998, at *2 (although district court's dismissal of § 1983

damages claim was not proper under Younger, dismissal was proper on basis of

Heck). This court recently held "[c]laims arising out of police actions toward a

criminal suspect, such as arrest, interrogation, or search and seizure, are

presumed to have accrued when the actions actually occur." Beck v. City of

Muskogee, 195 F.3d 553, 558 (10th Cir. 1999) (quotation omitted). Furthermore,

the Beck court specifically held that "nothing in Heck changes the

general rule

that causes of action relating to allegedly illegal arrest arise at the time of the

arrest." Id. Because Strepka's § 1983 claims both relate to police actions

occurring within the time frame of his arrest, a dismissal pursuant to Heck is not

appropriate in this particular case.

The district court's order of dismissal is hereby REVERSED and the

case

is REMANDED to the district court to reinstate the complaint. Because the

district court dismissed the complaint sua sponte before it could be served on the

defendants, the district court should order the complaint properly served. Once

the complaint has been properly served, the district court should stay all

proceedings in the case pending the outcome of the underlying state proceedings.

Strepka's "Motion of Ambiguity Question of Judicial Procedure" is DENIED

as

moot.

ENTERED FOR THE COURT:

Michael R. Murphy

Circuit Judge

FOOTNOTES

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

*. 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.

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