                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                   UNITED STATES COURT OF APPEALS                    July 19, 2011
                                                                 Elisabeth A. Shumaker
                                TENTH CIRCUIT                        Clerk of Court



 ERNEST WEST,

              Plaintiff - Appellant,                     No. 11-1144
 v.                                                      (D. Colorado)
 THE PEOPLE OF COLORADO; CITY                  (D.C. No. 1:10-CV-03130-LTB)
 AND COUNTY OF DENVER;
 DENVER POLICE DEPARTMENT;
 DENVER POLICE - AARON LOPEZ
 #95-62; and ATTORNEY WADE H.
 ELDRIDGE #65198,

              Defendants - Appellees.


                           ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, MURPHY, and MATHESON, Circuit Judges.



      After examining the appellant’s brief and the appellate record, this court

has concluded unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 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        This order and judgment is not binding precedent except under the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. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      Proceeding pro se, Ernest West appeals the dismissal of the civil rights

action he brought pursuant to 42 U.S.C. §§ 1983 and 1985. In the complaint,

originally filed on December 23, 2010, 1 West asserted claims arising from a 2000

Colorado arrest and conviction for distribution of a controlled substance. West

sought compensatory damages, punitive damages, and the expungement of his

conviction.

      In a comprehensive order, the district court detailed a myriad of defects

with West’s complaint. The court noted West’s claims against the state of

Colorado are barred by the Eleventh Amendment, his claims against his attorney

cannot be brought pursuant to § 1983 because he has not alleged his attorney

acted under color of state law, his claims against the Denver Police Department

must be asserted against the City and County of Denver, his claims against the

City and County of Denver fail because he has not alleged the existence of a

policy or custom that led to his alleged injuries, and the allegations of conspiracy

are conclusory and not supported by specific facts. Ultimately, however, after

noting that all of West’s claims implicitly challenge the validity of his state

conviction, the district court dismissed the complaint without prejudice as barred

by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (“In order to recover damages

for allegedly unconstitutional conviction or imprisonment, or for other harm


      1
      In response to an order of the district court, West filed an amended
complaint on March 18, 2011.

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caused by actions whose unlawfulness would render a conviction or sentence

invalid, a § 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.”).

      Having reviewed the record, West’s appellate brief, and the applicable law,

we conclude the dismissal of West’s § 1983 complaint without prejudice was

proper. Accordingly, finding no reversible error, we affirm the district court’s

dismissal of West’s complaint for substantially the reasons stated in the district

court’s order dated March 28, 2011, with the following amplification. To the

extent West seeks expungement of his conviction or otherwise attempts to

collaterally attack that conviction, his claims must be brought in a habeas

proceeding.

      West’s motion to proceed in forma pauperis on appeal is denied and West

is reminded of his responsibility to immediately remit any unpaid balance of the

appellate filing fee.

                                               ENTERED FOR THE COURT


                                               Michael R. Murphy
                                               Circuit Judge




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