                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         OCT 10 1997
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk


DOUGLAS WEST,

          Plaintiff-Appellant,

v.                                                      No. 97-7038
                                                 (E. District of Oklahoma)
CLYDE ADAMSON, Deputy Sheriff                     (D.C. No. 93-CV-713-S)
Murray County; ED BRISTOL,
Sheriff, Murray County,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, PORFILIO and MURPHY, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel

has unanimously determined 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. 34.1.9. The cause 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       This order and judgment is not binding precedent, except under the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.
      Douglas West, proceeding pro se, appeals the district court’s dismissal of

his complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. 1915(e). West’s

complaint, brought pursuant to 42 U.S.C. § 1983, alleged that the defendants,

Clyde Adamson and Ed Bristol, withheld three pieces of his outgoing mail and at

least one piece of his incoming mail, thereby precluding West from developing

evidence crucial to his defense. West further alleged that the defendants showed

the three outgoing letters to his wife in an attempt to get her to divorce West.

West prayed for monetary relief as well as the reversal of his conviction.

      Upon review of West’s complaint, the district court concluded that West

sought both habeas relief and relief pursuant to § 1983. As to West’s claim for

habeas relief, the district court dismissed the petition on the grounds that West

had not exhausted his state court remedies. The district court then proceeded to

stay West’s § 1983 claims pursuant to Heck v. Humphrey, 114 S. Ct. 2364, 2372

(1994) (When judgment for a plaintiff in a § 1983 suit “would necessarily imply

the invalidity of his conviction or sentence, . . . the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already

been invalidated.”). After the state district court denied West’s petition for post-

conviction relief, the district court revisited the stayed § 1983 claims. As to

West’s claims that the defendants acted to destroy his marriage, the district court

dismissed the claim as frivolous pursuant to 28 U.S.C. § 1915(e) on the grounds


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that West’s claims were vague, conclusory, and lacked an arguable basis either in

law or fact. As to the remainder of West’s § 1983 claims, the district court

dismissed without prejudice to refiling should West ultimately prevail on his

habeas corpus claims in either state or federal court. West appeals. This court

exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms.

      This court has reviewed the parties briefs and contentions and the entire

record on appeal. 1 Based on that review, we affirm for substantially the reasons

set forth in the district court’s orders dated April 28, 1994, and January 22, 1997.

We further find that this appeal is frivolous or fails to state a claim under 28

U.S.C. § 1915(e)(2)(B) for purposes of counting “prior occasions” under 28

U.S.C. § 1915(g).

                                               ENTERED FOR THE COURT:


                                               Michael R. Murphy
                                               Circuit Judge




      1
       This court reviews de novo the district court’s dismissal pursuant to Fed.
R. Civ. P. 12(b)(6). Brumark Corp. v. Samson Resources Corp., 57 F.3d 941, 944
(10th Cir. 1995). We review the district court’s § 1915(e) dismissal of West’s
claim relating to the defendant’s alleged attempt to destroy his marriage for abuse
of discretion. McWilliams v. Colorado, No. 96-1328, 1997 WL 452575, at *1
(10th Cir. Aug. 1, 1997).

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