Rice v. Helm , 80 F. App'x 644 ( 2003 )


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  •                                                                         F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    NOV 7 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    MARK D. RICE,
    Plaintiff - Appellant,
    No. 03-6226
    v.                                               (D.C. No. 03-CV-252-R)
    (W.D. Okla.)
    PRISCILLA HELM, OKC Police
    Detective,
    Defendant - Appellee.
    ORDER AND JUDGMENT *
    Before KELLY, BRISCOE, and LUCERO, Circuit Judges. **
    Defendant-Appellant Mark D. Rice, an inmate appearing pro se, appeals
    from the district court’s dismissal of his 
    42 U.S.C. § 1983
     claims under 28 U.S.C.
    § 1915A(b)(1) and § 1915(e)(2)(B)(ii) for failure to state a claim upon which
    relief may be granted. The district court counted the dismissal as a prior occasion
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. This 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.
    **
    After examining the briefs and the appellate record, this three-judge
    panel has determined unanimously that oral argument would not be of material
    assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
    Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
    pursuant to 
    28 U.S.C. § 1915
    (g). The parties are familiar with the facts and we
    will not repeat them herein. The district court correctly held that (1) this
    successive § 1983 action cannot be used as a discovery tool for a collateral attack
    on Mr. Rice’s convictions, and (2) the official capacity claim against the
    individual defendant fails to allege a constitutional violation caused by a custom
    or policy of the municipality. See Preiser v. Rodriguez, 
    411 U.S. 475
    , 488-90
    (1973) (claim for injunctive relief is only cognizable under 
    28 U.S.C. § 2254
    );
    Kutzner v. Montgomery County, 
    303 F.3d 339
    , 341 (5th Cir. 2002) (§ 1983 action
    may not be used for discovery when remedy lies with § 2254); Collins v. City of
    Harker Heights, 
    503 U.S. 115
    , 120-22 (1992) (constitutional violation must be
    product of official custom or policy to hold municipality liable). We affirm for
    substantially the reasons relied upon by the district court. R. Doc. 14.
    AFFIRMED. The motion to proceed in forma pauperis is DENIED and
    immediate payment of the unpaid balance of the appellate filing fee is due.
    Entered for the Court
    Paul J. Kelly, Jr.
    Circuit Judge
    -2-
    

Document Info

Docket Number: 03-6226

Citation Numbers: 80 F. App'x 644

Judges: Kelly, Briscoe, Lucero

Filed Date: 11/7/2003

Precedential Status: Non-Precedential

Modified Date: 11/6/2024