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March 8, 1995

LEO C. HILL, et al., Defendant.

The opinion of the court was delivered by: RICHEY

 Before the Court in the above-captioned case is the Defendants' Motion to Dismiss. Based on the parties pleadings, the entire record herein, and the applicable law with respect thereto, the Court will enter an Order of even-date herewith DISMISSING the above-captioned case as frivolous and GRANTING the Defendants' Motion.


 Plaintiff, a federal prisoner incarcerated at the Federal Correctional Institution Schulkill at Minersville, Pennsylvania, filed the above-captioned action pro se and in forma pauperis, alleging that the Defendants conspired to violate his Fourth, Sixth, and Eighth Amendment rights; the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq.; the Mail Fraud statute, 18 U.S.C. §§ 1341, 1342; and 42 U.S.C. § 1985(3) in obtaining his conviction. Plaintiff sues the Defendants in their official capacities only, seeking nine million dollars ($ 9,000,000) in general damages, the greater of one dollar or ten-percent of the total assets of each Defendant in punitive damages, three-times the amount of any damages awarded by the Court as "RICO damages," and "interest from the date this action [was] filed . . . until payment in full . . ." Amended Complaint, P 22. Plaintiff also seeks any other relief the Court "may deem just and proper." Id.

 Plaintiff's allegations generally concern the action of the various Defendants in securing his indictment and subsequent conviction in the United States District Court for the Western District of North Carolina. More specifically, Plaintiff asserts that Defendant Carl Horn, a former Assistant United States Attorney for the Western District of North Carolina, failed to disclose exculpatory evidence at Plaintiff's 1993 trial thereby violating plaintiff's right to a fair trial. Complaint, 3. Defendants William Bradford, also an Assistant United States Attorney, Leo Hill, a United States Secret Service Agent, Evelena Thompson, a probation officer, and Barbara Peterson, a court reporter,are similarly alleged to have violated Plaintiff's constitutional rights in securing Plaintiff's conviction and sentence. Complaint, 18; Amended Complaint, 6. Mr. Horn is also alleged to have revealed Plaintiff's "Medical History Information" to unauthorized persons, including a person with the allegedly fictitious name J.C. Lubin-Szafranski. Complaint, 4, 5.

 Janet Reno, the Attorney General of the United States, and Lloyd Bentsen, then the Secretary of the Department of the Treasury, are named as defendants, apparently on the theory that they are responsible for the actions of their subordinates. Finally, Defendants Harold Bender and George Laughn, criminal defense attorneys who formerly represented Plaintiff at various times, are alleged to have conspired with the other Defendants to violate Plaintiff's rights. Complaint, 8, 12. In his Amended Complaint, Plaintiff adds as a defendant his current attorney, Randolph Lee. Amended Complaint, 7.

A. Because Plaintiff fails to establish that the validity of his sentence has been impugned, his claims regarding the imposition of his sentence and his continued incarceration must be dismissed as frivolous.

 A prisoner may not bring a civil action which would undermine the validity of his or her conviction absent a demonstration that "the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, U.S. , 114 S. Ct. 2364, 2372-73, 129 L. Ed. 2d 383 (1994) (footnotes omitted); see Stephenson v. Reno, 28 F.3d 26, 27-28 (5th Cir. 1994) (per curiam) (applying Heck, which involved a § 1983 action, to a Bivens suit). Accordingly,

when a . . . prisoner seeks damages in a . . . suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

 Heck, 114 S. Ct. at 2372-73 (1994) (footnotes omitted).

 An example of an action that "does not seek damages directly attributable to conviction or confinement but whose successful prosecution would necessarily imply the plaintiff's criminal conviction was wrongful," Id. at 2373 n.6, is one brought by a defendant convicted of and sentenced for the crime of resisting arrest against the arresting officer asserting a Fourth Amendment violation because success in the action would necessarily negate an element of the offense of which the plaintiff had been convicted. Id.

 An example of an action that would not necessarily imply the unlawfulness of a plaintiff's conviction is a damages action alleging an unreasonable search even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the plaintiff's conviction. Id. at 2373 n.7. As the Supreme Court noted in Heck, "because of doctrines like independent source and inevitable discovery, and especially harmless error, such . . . [an] action, even if successful, would not necessarily imply that the plaintiff's conviction was unlawful." Id. (citations omitted). However, in order to recover compensatory damages, such a plaintiff "must prove not only that the search was unlawful, but that it caused him actual, compensable injury, which . . . does not encompass the 'injury' of being convicted and imprisoned (until [the plaintiff's] conviction has been overturned)." Id.

 As Heck "[did] not engraft an exhaustion requirement upon § 1983, but rather [denied] the existence of a cause of action [because] even a prisoner who has fully exhausted available state remedies has no cause of action under § 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus," id. at 2373-74, neither does a Bivens cause of action for damages attributable to an ...

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