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

                                TENTH CIRCUIT                    November 9, 2011

                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
DWAYNE A. HUDSON,

      Plaintiff - Appellant,

v.                                                         No. 11-1135
                                                 (D.C. No. 1:10-CV-02276-ZLW)
PAROLE OFFICER TODD MASON (P.O.                             (D. Colo.)
Mason); DETECTIVE RICHARD
SCHNEIDER (Det. Schneider);
COLORADO PAROLE BOARD;
CLEMENT BOURGEOIS (Det.
Bourgeois),

      Defendants - Appellees,

and

DENVER POLICE DEPARTMENT;
PAROLE OFFICER SARA PHELPS (P.O.
Phelps); PAROLE OFFICER TRACY
SHARP (P.O. Sharp); DIVISION OF
ADULT SERVICES, Colorado Parole
Board,

      Defendants.




                     ORDER DENYING LEAVE TO PROCEED
                       ON APPEAL IN FORMA PAUPERIS,
                          AND DISMISSING APPEAL


Before O'BRIEN, McKAY, and TYMKOVICH, Circuit Judges.


      Dwayne A. Hudson wants to appeal in forma pauperis (ifp) from the district
court’s order dismissing his 42 U.S.C. § 1983 complaint.1 The complaint alleged

violations of Hudson’s civil rights stemming from the revocation of his parole for failing

to timely register as a sex offender. The district court, concluding Hudson’s complaint

was legally frivolous under Heck v. Humphrey, 512 U.S. 477 (1994), dismissed the

complaint sua sponte. See 28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319,

324-25 (1989) (construing § 1915(d), the predecessor to § 1915(e)(2)). We deny his

request to proceed ifp and dismiss the appeal.

                                   I.   BACKGROUND2

       After Hudson was paroled on August 26, 2008, he was required under Colorado

law to register as a sex offender by September 3, 2008, but did not attempt to do so until

September 5, 2008. When he did attempt to register at the Denver Police Department, he

claims a detective became aggressive and verbally abusive. The detective refused to

complete the registration and ordered him to leave. He contacted his parole officer, who

told him to try again on Monday, September 8. When he did so, he was arrested for

failing to timely register. His parole was then revoked for failing to timely register.

       His complaint alleged: (1) the detective retaliated against him for his speech,

thereby depriving him of his due process right to register and his right to free speech; (2)

       1
       Our jurisdiction derives from 28 U.S.C. § 1291. We construe Hudson’s
complaint liberally because Hudson is not represented by counsel. See Haines v. Kerner,
404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
       2
         The district court accepted as true the recitation of facts in Hudson’s complaint.
We do likewise. See McKinney v. Okla. Dep’t of Human Servs., 925 F.2d 363, 365 (10th
Cir. 1991) (a district court may, but need not, “pierce the veil of the complaint’s factual
allegations” to determine whether the complaint is frivolous under § 1915(d)) (citation
omitted).

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the parole officer falsified evidence, depriving him of due process; (3) the detective

violated his Fourth Amendment rights by falsely swearing out an affidavit in support of

an arrest warrant; and (4) two other detectives violated Hudson’s rights to equal

protection and due process when they submitted false information to obtain a warrant for

his arrest. He sought damages for interference with his liberty.

       The district court concluded Heck barred Hudson’s claims and dismissed his

complaint without prejudice. It also denied his motion to proceed ifp on appeal. Hudson

renews his ifp request with this Court.3

                                    II.    DISCUSSION

       To proceed ifp on appeal, Hudson “must show a financial inability to pay the

required filing fees and the existence of a reasoned, nonfrivolous argument on the law

and facts in support of the issues raised on appeal.” DeBardeleben v. Quinlan, 937 F.2d

502, 505 (10th Cir. 1991) (emphasis added). We have reviewed Hudson’s motion to

proceed ifp and solicitously construed his briefs in light of the district court record. His

arguments are contrary to settled law and he makes no reasoned argument for

modification of that law.

       A § 1983 complaint for damages caused by an allegedly unconstitutional

conviction or imprisonment “must be dismissed unless the plaintiff can demonstrate that

the conviction or sentence has already been invalidated.” Heck, 512 U.S. at 487. Heck



       3
         After reviewing Hudson’s response to our order for briefing on the timeliness of
his notice of appeal, we are satisfied he timely filed his notice of appeal in accord with
the prison mailbox rule. See Price v. Philpot, 420 F.3d 1158, 1163-64 (10th Cir. 2005).

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also bars proceedings challenging “the fact or duration of parole.” Crow v. Penry, 102

F.3d 1086, 1087 (10th Cir. 1996). Hudson’s complaint centers on the manner in which

he was treated at the police station, including not being permitted to register the first time

he appeared. While not complaining about his parole revocation, per se, he seeks redress

(in the form of damages) for the liberty he claims to have lost due to his arrest and the

revocation of his parole. Regardless of any rude treatment or delay he may have

encountered at the police station, Hudson was already late when he first appeared for

registration. His attempt to register (two days late), his contact with his probation officer,

his repeated attempt to register, as well as the allegedly false information provided by the

probation officer and the detectives might have, if sufficiently established and legally

significant, amounted to a defense to the possible revocation of his probation (or

mitigating factors in deciding the consequences). But they did not – his parole was

revoked. Because his parole revocation has not been invalidated, the district court

correctly concluded Heck bars his claims.

       Hudson has not presented reasoned, non-frivolous arguments in support of the

issues raised on appeal. We DENY his motion to proceed ifp on appeal and remind him

of his obligation to pay the filing and docket fees in full to the clerk of the district court. 4

We DISMISS this appeal as frivolous, see 28 U.S.C. § 1915(e)(2)(b)(i), and thereby

impose two strikes for the purposes of 28 U.S.C. § 1915(g); one for the frivolous filing

and another for the frivolous appeal. See Jennings v. Natrona Cnty. Det. Ctr. Med.

       4
        See Kinnell v. Graves, 265 F.3d 1125, 1129 (10th Cir. 2001) (dismissal of appeal
does not relieve a party from the responsibility to pay the appellate filing fees).

                                              -4-
Facility, 175 F.3d 775, 780 (10th Cir. 1999) (“If we dismiss as frivolous the appeal of an

action the district court dismissed under 28 U.S.C. § 1915(e)(2)(B), both dismissals count

as strikes.”). Hudson’s remaining motions – (1) for a show cause order and injunction

and (2) for an extension of time to serve the other parties - are DENIED.

                                          Entered by the Court:

                                          Terrence L. O’Brien
                                          United States Circuit Judge




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