F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 30 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
FELICIO OSTUNI,
Plaintiff - Appellant,
v.
No. 02-1239
SERGEANT FOSTER; OFFICER
D.C. No. 02-Z-492
WILLIAMS; DET. DAVID OLLILA;
(D. Colorado)
DET. DAVID LUCERO; CHIEF
GERALD WHITMAN; DEPUTY
MAYOR STEPHANIE FOOTE; and
MAYOR WELLINGTON WEBB,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before EBEL, LUCERO and HARTZ, Circuit Judges.
Plaintiff Felicio Ostuni (“Plaintiff”) is currently incarcerated at the
Sterling, Colorado, Correctional Facility. On March 13, 2002, he filed this pro se
*
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order and judgment is not binding precedent, except under the doctrines of law of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.
civil rights complaint under 42 U.S.C. § 1983. He alleged, inter alia, that
members of the Denver Police Department and other city officials violated his
Fourth and Fourteenth Amendment rights during an investigation that resulted in
his conviction and current incarceration.
In an Order and Judgment filed May 13, 2002, the district court dismissed
Plaintiff’s complaint and entered judgment in favor of all Defendants. To the
extent that Plaintiff was attempting to use his § 1983 action to invalidate the
criminal conviction for which he was currently incarcerated, the district court
ruled that such a claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994). It
dismissed that claim without prejudice. The district court also dismissed
Plaintiff’s harassment claim against Defendants Foster, Williams, Ollila and
Lucero, finding that claim legally frivolous because of Plaintiff’s failure to “state
a claim that rises to the level of a constitutional deprivation.” (Slip Op. at 2.)
On June 5, 2002, the district court denied Plaintiff’s motion to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915 and Fed. R. App. P. 24, finding that
Plaintiff’s arguments were frivolous and that his appeal was not taken in good
faith. Plaintiff then filed an ifp motion with this Court.
-2-
After a full review of the record, we GRANT Plaintiff’s motion to proceed
in forma pauperis and AFFIRM the dismissal of his complaint for substantially
the reasons stated by the district court in its May 13, 2002, Order and Judgment.
ENTERED FOR THE COURT
David M. Ebel
Circuit Judge
-3-