OpenJurist

43 F3d 1469 Walton v. B a Davis III

43 F.3d 1469

Timothy Dexter WALTON, Plaintiff Appellant,
v.
B. A. DAVIS, III; Judge Alexander; Clifford F. Hapgood;
David A. Melesco; Russell Mackenheiner; Sarah A. Rice;
Wayne Inge; Reno S. Harp; Richard C. Vorhis; William J.
Walker, Jr., Defendants Appellees.

No. 94-7090.

United States Court of Appeals, Fourth Circuit.

Submitted Nov. 17, 1994.
Decided Dec. 20, 1994.

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.

Appeal from the United States District Court for the Western District of Virginia, at Roanoke. James C. Turk, District Judge. (CA-94-716-R)

Timothy Dexter Walton, Appellant Pro Se.

W.D.Va.

AFFIRMED.

Before RUSSELL and MURNAGHAN, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:

1

Appellant appeals from the district court's order denying relief on his 42 U.S.C. Sec. 1983 (1988) complaint. Although the district court should have construed the case under Sec. 1983 because the sole remedy sought was monetary damages,1 we find that dismissal was proper because the claim was not cognizable. Specifically, Appellant has not stated a claim because his conviction has not been invalidated, a prerequisite to a Sec. 1983 action implicating the procedures underlying the conviction. See Heck v. Humphrey, 62 U.S.L.W. 4594 (U.S.1994).2 Accordingly, we affirm the district court's dismissal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid the decisional process.

AFFIRMED

1

See Preiser v. Rodriguez, 411 U.S. 475 (1973)

2

To the extent that the claim could be construed as a 28 U.S.C. Sec. 2254 (1988) petition, it was properly dismissed for failure to exhaust state remedies