                                                                    F I L E D
                                                           United States Court of Appeals
                                                                   Tenth Circuit
               UNITED STATES COURT OF APPEALS
                                                                    AUG 31 2000
                             TENTH CIRCUIT
                                                               PATRICK FISHER
                                                                       Clerk

RAYMOND MARTINEZ,

          Plaintiff-Appellant,                   No. 00-1070
    v.                                             D. Colo.
MICHAEL C. VILLANO, ANTHONY                  (D.C. No. 99-Z-2040)
F. VOLLACK, JOHN T.
SCHERLING, STEVEN R. GAYLE,
ROY G. OLSON, JR., HAROLD E.
BRAY, BRADLEY A. ROCKWELL,
MICHAEL A. OBERMEYER, BRIAN
J. MCCOY, HARRY NIMROD, LEE
ZWEIGLE, ED CAMP, ROBERT
TAYLOR, ARISTEDES W.
ZAVARAS, JOHN JUBIC, RICHARD
A. MARR, JUANITA WILLYARD,
CAROL HADLEY, BILL BURDGES,
BEN OWENSLY, OLAH MURPHY,
WILLIAM SELLERS, JUANITA
NOVAK, RANDY MALDEN, JULIE
WOLFF, DAVE ROMERO, DAVE
BEEBE, WILLIAM WILSON, JR.,
JOHN SUTHERS, CHARLES RAY,
JOHN AND/OR JANE DOE,
GEORGE LOWE, GILBERT LOWE,
ARNOLD ROWE, ANNIE ROWE,
MARVIN POE, MAVIS POE,
RANDY PURCELL, STEVEN L.
BROWN, JR., MS. WRIGHT, L.
MAXWELL, MR. PHILLIPS, FRANK
E. RUYBALID, ALAN STUMP, MR.
D. ROBERTSON, and MR. J.
HADLEY,

         Defendants - Appellees.
                             ORDER AND JUDGMENT                  *




Before BALDOCK , HENRY , and LUCERO , Circuit Judges.                   **




       Mr. Martinez, proceeding pro se, appeals the district court’s dismissal of

his civil rights action. The district court dismissed Mr. Martinez’s amended

complaint in part as legally frivolous, under          Neitzke v. Williams , 490 U.S. 319,

324 (1989), in part as barred by the rule in          Heck v. Humphrey , 512 U.S. 477, 487

(1994) (stating that 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,”) and in part for failure to exhaust state

remedies.




       This order and judgment is not binding precedent, except under the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.

       **
         After examining the briefs and 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); 10th Cir. R. 34.1(G).
The case is, therefore, ordered submitted without oral argument.

                                                -2-
      Mr. Martinez’s claims are difficult to understand. We construe his

complaint liberally because Mr. Martinez is proceeding pro se, but we cannot be

his advocate. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972).

      Mr. Martinez appears to challenge the validity of two state court

convictions. Mr. Martinez seeks monetary damages and expungement of the

convictions. As to his claims for monetary relief, we agree with the district court

that Mr. Martinez’s claims are barred under         Heck and should be dismissed

without prejudice.

      To the extent Mr. Martinez is only seeking expungement of his criminal

convictions, a § 1983 action is not the proper vehicle. The Supreme Court has

held that “habeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or

speedier release, even though such a claim may come within the literal terms of §

1983.” Heck , 512 U.S. at 481, 522; Carson v. Johnson , 112 F.3d 818, 820 (10th

Cir. 1997) ( stating that “[g]enerally, § 1983 suits are the proper vehicle to attack

unconstitutional conditions of confinement and prison procedures”). Thus the

district court properly concluded that, because there is no evidence Mr. Martinez

has exhausted his state court remedies, or that no adequate state remedies are

available or effective to protect Mr. Martinez’s rights, his claims seeking

expungement of his criminal convictions should also be dismissed.


                                              -3-
        Mr. Martinez’s remaining claims list a litany of challenges to the conditions

of his confinement, including chronic headaches; restricted document preparation

materials; being forced drinking tap rather than bottled water; having his clothing,

bedding, toothbrush, and similar articles handled with unclean hands; continuing

headaches and neck aches; stress from fear of being transferred and suffering

from restricted privileges; and being forced to eat unpalatable and unwholesome

food. From a review of Mr. Martinez’s contentions and the entire record on

appeal, we conclude that the district court properly dismissed these claims as

well.

        We therefore AFFIRM the dismissal of Mr. Martinez’s complaint for

substantially the reasons set forth in the district court's orders dated January 12,

2000.

                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge




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