Kerr v. Gunn - Case Law

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT



                            No. 97-6877



JAMES KERR,

                                            Plaintiff - Appellant,

          versus


WILLIAM E. GUNN; J. P. HODGES; DAVID A. FASH-
ION, JR., individually and in their respective
official capacities,

                                           Defendants - Appellees.



Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge;
Robert S. Carr, Magistrate Judge. (CA-96-2782-2-18AJ)


Submitted:    November 18, 1997        Decided:     December 15, 1997


Before HALL, LUTTIG, and MOTZ, Circuit Judges.


Affirmed as modified by unpublished per curiam opinion.


James Kerr, Appellant Pro Se. Carl Norman Lundberg, SOUTH CAROLINA
DEPARTMENT OF PROBATION, PAROLE & PARDON SERVICES, Columbia, South
Carolina, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals the district court's order granting Defen-

dants' motion for summary judgment and denying his motion for ap-

pointment of counsel. We have reviewed the record and the district

court's opinion and find no reversible error. Appellant filed an

action seeking damages, challenging the validity of his parole
rescission. To recover damages for an allegedly unconstitutional

conviction or sentence, or for other harm caused by actions whose

unlawfulness would render a conviction or sentence invalid, a pris-

oner must prove that the conviction or sentence was: (1) reversed
on direct appeal; (2) expunged by executive order; (3) declared

invalid by a state tribunal authorized to make such a determina-

tion; or (4) called into question by a federal court's issuance of

a writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994). Because Appellant has failed to make such a showing, his

claim is not ripe and must be dismissed without prejudice. Accord-
ingly, we affirm as modified to reflect dismissal without prejudice

to Appellant's right to file another action if his claim becomes

ripe.   Appellant's pending motions to extend time to perfect his

appeal and to quash affidavit and appeal are denied. 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 AS MODIFIED



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