F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                       August 1, 2006
                      UNITED STATES CO URT O F APPEALS              Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT



 RO NA LD CRA IG G RA DLE,

          Plaintiff-Appellant,
                                                         No. 06-6044
 v.
                                                   (D.C. No. 05-CV-973-C)
                                                         (W .D. Okla.)
 STA TE OF O K LA H O MA ,

          Defendant-Appellee.



                             OR DER AND JUDGM ENT *


Before HA RTZ, EBEL and T YM KOVICH, Circuit Judges.




      Defendant-Appellant Ronald Craig Gradle, a state prisoner appearing pro

se, filed a mixed action in federal district court requesting habeas corpus relief,

pursuant to 28 U.S.C. § 2254, and civil rights damages and equitable relief,

pursuant to 42 U.S.C. § 1983. The district court denied Gradle’s § 2254 petition




      *
         After examining appellant’s brief and the 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) and 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Order and Judgment is not binding precedent, except under the doctrines of law of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. 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.
and dismissed his § 1983 civil rights action. The district court also subsequently

denied Gradle’s request for a certificate of appealability (COA) to challenge the

denial of his habeas corpus petition. Exercising jurisdiction pursuant to 28 U.S.C.

§ 2253(c)(1) and 42 U.S.C. § 1983, we 1) deny M r. Gradle’s request for COA and

dismiss his habeas appeal; and 2) affirm the district court’s dismissal of M r.

Gradle’s civil rights action.

                                  BACKGROUND

      M r. Gradle was convicted in Oklahoma state court of murder and sentenced

to prison. His direct appeal and a first post-conviction appeal were dismissed for

failure to comply with applicable procedural rules. A successive attempt at post-

conviction relief was denied for failure to raise the issues in his previous appeal.

      M r. Gradle then filed in federal district court an original § 1983 complaint,

alleging false imprisonment and seeking monetary and equitable relief. In

addition, M r. Gradle alleged that he had been “subject to criminal proceedings” in

the State of Oklahoma that contravened his substantive due process rights and that

his state court prosecution “was void ab initio for reasons including: (1) [he] was

denied the constitutionally reserved right not to be subjected to a prosecution and

trial for an infamous crime w ithout benefit of counsel, and (2) [e]xculpatory

evidence w as destroyed prohibiting [him] from receiving a fair trial.” Because

M r. Gradle’s initial pleading could have been construed, in part, as a petition for

habeas corpus relief, the district court asked M r. Gradle w hether he wanted to

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convert his action to a mixed case that included both a § 1983 civil rights claim

and a § 2254 claim challenging his conviction. In response, M r. Gradle filed an

amended complaint under § 1983 and § 2254. 1 M r. Gradle named as D efendants

the State of Oklahoma; and Tim Kuykendall, the district attorney in the district

where M r. Gradle was convicted, and Judge Tom Lucas, the state court judge who

presided over M r. Gradle’s trial, in their official and individual capacities.

                                   D ISC USSIO N

      Over M r. Gradle’s objections, the district court adopted the report and

recommendations of the magistrate judge, concluding that 1) M r. Gradle did not

exhaust his remedies in state court, barring his habeas claim; and 2) M r. Gradle’s

§ 1983 civil rights claims were barred by the Eleventh Amendment and the

doctrine of absolute immunity, and failed to state a claim upon which relief could

be granted. It therefore denied M r. Gradle habeas relief and dismissed his civil

rights action. The district court considered its dismissal of M r. Gradle’s § 1983

case a strike pursuant to 28 U.S.C. § 1915(g), as amended by the Prison Litigation

Reform Act (PLRA). It subsequently denied M r. Gradle’s request for a COA to

appeal the denial of his habeas corpus petition and his request to proceed IFP on

appeal.



      1
         Prior to converting M r. Gradle’s amended complaint into a mixed habeas
and civil rights complaint, the district court granted M r. Gradle’s initial motion to
proceed in forma pauperis (IFP) on his § 1983 claim and ordered him to make
installment payments.

                                         -3-
                                          I.

       After concluding that M r. Gradle failed to raise his habeas claims in a

direct appeal of his conviction, the district court ordered M r. Gradle to show

cause for his state court procedural default of the habeas claims asserted in his

mixed complaint. In response, M r. Gradle did not contest the district court’s

conclusion that he had procedurally defaulted the habeas claims but rather

asserted only that “[a] fundamental miscarriage of justice shall occur if [he] is

held to the stricter letter of application of the procedural default doctrine since

[his] situation makes it impossible to adhere to strict compliance with any

doctrine.” 2

       The fundamental miscarriage of justice exception to state court procedural

bar applies only where the habeas petitioner can show that the alleged errors

probably resulted in “the conviction of someone who is factually innocent.”

United States v. Salazar, 

, 855 (10th Cir. 2003); see also Herrera v.

Collins, 

, 404 (1993) (“The fundamental miscarriage of justice

exception is available only where the prisoner supplements his constitutional

claim with a colorable showing of factual innocence.”) Cases involving a



       2
         On appeal, M r. Gradle argues that “[d]e novo review of the low er court’s
dismissal shall reveal that Ronald Craig Gradle . . . exhausted remedies prior to
filing a complaint in the federal court.” In addition to the fact that M r. Gradle
waived this issue by failing to raise it before the district court, see Walker v.
M ather, 

, 896 (10th Cir. 1992), he provides no facts or additional
arguments on appeal to support this contention.

                                         -4-
fundamental miscarriage of justice are therefore “extraordinary instances.”

M cClesky v. Zant, 

, 494 (1991).

      Before the district court, and again on appeal, M r. Gradle failed to support

his conclusion that failure to review the merits of his defaulted habeas claims

would result in a fundamental miscarriage of justice. Although he claims that

exculpatory evidence was withheld and destroyed, he neither identifies the

evidence nor provides factual support for the conclusion that the evidence was in

fact exculpatory. He therefore has not demonstrated any evidence tending to

show actual innocence. See 

. Accordingly, no

“reasonable jurists could debate w hether (or, for that matter, agree that) [M r.

Gradle’s] petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further.”

Slack v. M cD aniel, 

, 484 (2000) (quotations omitted). W e therefore

deny M r. Suarez’s request for a COA and dismiss his habeas appeal.

                                          II.

      Liberally construing M r. Gradle’s amended complaint, he also alleges a

§ 1983 claim against Defendants State of Oklahoma, Judge Lucas in his official

and individual capacity, and District Attorney Kuykendall in his official and

individual capacity, seeking monetary and equitable relief for false imprisonment.

Section 1915 of the PLRA applies to such a “civil action” by a prisoner. See 28

U.S.C. § 1915. Pursuant to 28 U.S.C. § 1915A, the district court must “screen[]”

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as soon as possible “a complaint in a civil action in w hich a prisoner seeks redress

from a governmental entity or officer or employee of a governmental entity.” The

court must dismiss “the complaint, or any portion of the complaint,” if it “is

frivolous, malicious, fails to state a claim upon which relief may be granted; or

. . . seeks monetary relief from a defendant who is immune from such a claim.”

28 U.S.C. § 1915A(b)(1)& (2). Additionally, the court must dismiss a cause of

action filed IFP against any defendant at any time the court determines one of

those grounds is present. See 28 U.S.C. § 1915(e)(2)(B).

      A.     O fficial Immunity

      In this case, Defendants Lucas and Kuykendall, in their individual

capacities, are immune from M r. Gradle’s § 1983 claim seeking monetary

damages for false imprisonment. “[A] judge is [generally] immune from a suit

for money damages.” M ireles v. W aco, 

, 9 (1991) (per curiam).

Judicial immunity ensures “that a judicial officer, in exercising the authority

vested in him, shall be free to act upon his own convictions, without apprehension

of personal consequences to himself.” 

(internal quotation marks

omitted). “Only accusations that a judge was not acting in his judicial capacity or

that he acted in the complete absence of all jurisdiction can overcome absolute

immunity;” bad faith or malice are not sufficient. Guttman v. Khalsa, 

, 1033-34 (10th Cir. 2006) (quotations omitted). Here, as the magistrate

judge concluded, M r. Gradle’s allegations against Judge Lucas do not fall within

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this latter exception. Instead, M r. Gradle’s claim against Judge Lucas is based

entirely on actions he took in his judicial capacity and within his jurisdiction as a

state court judge. Accordingly, Judge Lucas in his individual capacity is entitled

to judicial immunity from M r. Gradle’s § 1983 claims for money damages.

      Defendant Kuykendall in his individual capacity is similarly absolutely

immune from M r. Gradle’s § 1983 claim for money damages. Prosecutors enjoy

absolute immunity to liability under § 1983 for actions “within the scope of their

prosecutorial duties.” Arnold v. M cClain, 

, 966 (10th Cir. 1991).

The district court concluded that M r. Gradle did not allege that Defendant

Kuykendall participated in the alleged destruction of any evidence and thus

alleged only that Defendant Kuykendall prosecuted him. Even assuming M r.

Gradle sufficiently alleged that Defendant Kuykendall destroyed or w ithheld

exculpatory evidence, the Supreme Court has stated clearly that “in initiating a

prosecution and in presenting the State’s case, the prosecutor is immune from a

civil suit for damages under § 1983.” Imbler v. Pachtman, 

, 430

(1976); Robinson v. Volksw agenwerk AG, 

, 1373 n.4 (10th Cir.

1991) (“[I]t is now a well-settled rule that a prosecutor cannot be held personally

liable for the knowing suppression of exculpatory information.”) (quotations,

citations, alterations omitted). W e therefore conclude that the district court did

not err in finding that Defendant Kuykendall in his individual capacity was

entitled to prosecutorial immunity.

                                         -7-
      Accordingly, we affirm the district court’s dismissal of M r. Gradle’s § 1983

claim for money damages against D efendants Lucas and Kuykendall in their

individual capacities under the doctrine of absolute immunity.

      B.     Eleventh Amendment Immunity

      Absent a specific w aiver of immunity or express abrogation of the state’s

immunity by Congress, “[n]onconsenting States may not be sued by private

individuals in federal court” regardless of the form of relief requested. Opala v.

W att, — F.3d — , 2006 W L 2037162, at *3 (10th Cir. 2006) (quotations,

alterations omitted). Suits seeking “retroactive relief” against state officials in

their official capacity “are deemed to be suits against the state.” ANR Pipeline

Co. v. Lafaver, 

, 1188 (10th Cir. 1998). Here, the State of

Oklahoma has not expressly waived its Eleventh Amendment immunity to suit in

federal court. See Okla. Stat. tit. 51, § 152.1(B) (expressing the state’s intent not

to waive Eleventh A mendment immunity in the Oklahoma G overnmental Tort

Claims A ct). And the Supreme Court has held that § 1983 does not abrogate state

sovereign immunity. W ill v. M ich. Dep’t of State Police, 

, 66, 71

(1989). 3 W e therefore affirm the district court’s dismissal of M r. Gradle’s § 1983

claims for monetary and equitable relief against the State of Oklahoma, as well as




      3
           Additionally, the Supreme Court has concluded that “neither a state nor
its officials acting in their official capacities are ‘persons’ under § 1983.” W ill v.
M ichigan Dep’t of State Police, 

, 71 (1989).

                                         -8-
his claims for money damages against D efendants Judge Lucas and Kuykendall in

their official capacities.

       C.     Failure to State a Claim

       W hen a state prisoner seeks damages or declaratory or injunctive relief in a

§ 1983 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.” Heck v. Humphrey, 

, 487 (1994) (damages); Edwards v Balisok, 

, 648 (1997)

(declaratory relief); Law son v. Engleman, 67 F. App’x 524, 526 n.2 (10th Cir.

2003) (unpublished) (injunctive relief); see also Beck v. M uskogee Police Dep’t,

, 557 (10th Cir. 1999) (noting that Heck should generally apply

“when the concerns underlying Heck exist,” which include “those claims that

would necessarily imply the invalidity of [the] conviction”). W e agree with the

district court’s conclusion that M r. Gradle’s false imprisonment claim relates to

the validity of his state court conviction and that M r. Gradle has not demonstrated

the necessary prerequisite to allow that action to proceed. W e therefore also

affirm the district court’s dismissal of M r. Gradle’s § 1983 claim for failure to

state a claim upon which relief may be granted.




                                         -9-
                                  C ON CLU SIO N

      For the foregoing reasons, we DENY M r. Gradle’s request for a COA and

D ISM ISS his appeal of the district court’s denial of his § 2254 petition; and w e

AFFIRM the district court’s dismissal of M r. Gradle’s § 1983 action against all

Defendants.

      M r. Gradle seeks leave to proceed on appeal IFP. Because neither M r.

Gradle’s habeas corpus appeal nor his civil rights appeal has any arguable basis

for relief in either law or fact, 4 his request to proceed IFP is DENIED, and we

order M r. Gradle to immediately pay the full filing fee. See K innell v. Graves,

, 1129 (10th Cir. 2001) (indicating that dismissal of an appeal does

not relieve an appellant of the obligation to pay the appellate filing fee in full).


                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge

      4
         Although “[w]e have previously concluded that 28 U.S.C. § 2254 habeas
corpus . . . , and appeals of those proceedings, are not ‘civil actions’ for purposes
of 28 U.S.C. § 1915(a)(2) and (b),” we have also held that a habeas corpus
petitioner “remains obligated to comply with, and is subject to, all of the other
provisions of 28 U.S.C. § 1915.” M cIntosh v. United States Parole Comm’n., 

, 811 (10th Cir. 1997). As a result, section 1915(e)(2), applies equally to
this case regardless of whether it is considered a habeas corpus or civil rights
appeal. That section requires an appellant seeking leave to proceed IFP to show
both an inability to pay the filing fee and the existence of a nonfrivolous issue on
appeal that states a claim on which relief can be granted. See 28 U.S.C.
§ 1915(e)(2).

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