                                                                           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order and judgment is not binding precedent, except under the doctrines of law of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.




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      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




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