FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                             FOR THE TENTH CIRCUIT                            June 6, 2019
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 ROY DEAN TAYLOR,

       Plaintiff - Appellant,

 v.                                                          No. 19-4001
                                                    (D.C. No. 2:16-CV-00961-CW)
 BRANDON RUSSELL; PAUL SCOTT,                                  (D. Utah)

       Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before CARSON, BALDOCK, and MURPHY, Circuit Judges.
                  _________________________________

      In October 2014, Defendants Brandon Russell and Paul Scott, officers with the

Heber City Police Department, pulled Plaintiff Roy Taylor’s car over and searched the

vehicle. Defendants found a glass pipe, a box of clear plastic bags, and a digital scale.

Defendants later discovered Plaintiff stashed a bag of methamphetamine in the police

car as they transported him to jail. A jury found Plaintiff guilty of two drug charges,

and Plaintiff went to Utah state prison. In September 2016, Plaintiff filed a pro se



      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
complaint against Defendants pursuant to 42 U.S.C. § 1983 in the District of Utah,

arguing Defendants searched his vehicle in violation of the Fourth, Eighth, and

Fourteenth Amendments. In response, the district court entered an order explaining

Federal Rule of Civil Procedure Rule 8’s requirements and Heck v. Humphrey’s

holding that “a § 1983 action that would impugn the validity of a plaintiff’s underlying

conviction cannot be maintained unless the conviction has been reversed on direct

appeal or impaired by collateral proceedings.” Doc. 7 (citing Heck v. Humphrey, 

(1994)). The court further explained, “Heck prevents litigants ‘from using a

§ 1983 action, with its more lenient pleading rules, to challenge their conviction or

sentence without complying with the more stringent exhaustion requirements for

habeas actions.’” 

(citing Butler v. Compton, 

, 1279 (10th Cir.

2007)). The court then ordered Plaintiff to cure the complaint’s deficiencies within

thirty days.

       Within thirty days, Plaintiff filed an amended complaint, making the same

allegations that Defendants violated his Fourth, Eighth, and Fourteenth Amendment

rights when they pulled him over and searched his vehicle. The magistrate judge issued

a report and recommendation, recommending the complaint be dismissed.                 The

magistrate judge explained that “Heck v. Humphrey . . . clarified that ‘civil tort actions

are not appropriate vehicles for challenging the validity of outstanding criminal

judgments.’” Doc. 22 at 5. The magistrate judge then stated, “Plaintiff’s assertion that

Defendants violated his constitutional rights would cast doubt upon Plaintiff’s

underlying     conviction   because   the   evidence    discovered    in   the   allegedly

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unconstitutional search was the sole basis for Plaintiff’s charges and eventual

conviction.” 

The district court adopted the report and recommendation, stating

the “action is barred by Heck v. Humphrey, 

(1994), as it challenges the

validity of [Plaintiff’s] conviction while the conviction stands undisrupted by direct

appeal or collateral challenge.” Doc. 26, at 2. Plaintiff filed a timely notice of appeal.

      Plaintiff’s appellate brief is silent about the unconstitutional search of his

vehicle. Instead, stating that the appellee is the “State of Utah,” Plaintiff argues (1)

doctors at the prison have been deliberately indifferent to his back pain and (2) the fact

that his back pain has not been well-controlled constitutes cruel and unusual

punishment. Plaintiff made similar arguments in a separate district court case, D.C.

No. 2:15-cv-343. But these arguments were not made in Plaintiff’s amended complaint

in the instant case and, thus, were not ruled on by the district court. “It is the general

rule, of course, that a federal appellate court does not consider an issue not passed upon

below.” Singleton v. Wulff, 

, 120 (1976). Further, the named defendants

in this case, Officers Brandon Russell and Paul Scott, have nothing to do with these

medical care allegations. These issues are, therefore, not properly before this Court

and we do not consider them. While Plaintiff does not argue that the district court

erred in determining Heck v. Humphrey barred his unconstitutional search claims, we

note the district court’s analysis on this issue was correct.




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     The district court’s order is AFFIRMED. Petitioner’s motion to proceed in

forma pauperis is GRANTED.


                                      Entered for the Court


                                      Bobby R. Baldock
                                      Circuit Judge




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