                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                                                                         MAY 29 2003
                      UNITED STATES COURT OF APPEALS
                                                                     PATRICK FISHER
                                                                              Clerk
                                    TENTH CIRCUIT



 MICHAEL EUGENE PRICE, SR.,

          Plaintiff - Appellant,

 v.
                                                       No. 03-5012
 DAVID T. ISKI; JIM CLARK; RON                  (D.C. No. 02-CV-530-B(M))
 PALMER; JIM BOUCKADAKIS;                            (N.D. Oklahoma)
 OFFICER SANDY; STANLEY
 GLANZ; TULSA COUNTY BOARD
 OF COUNTY COMMISSIONERS,

          Defendants - Appellees.


                             ORDER AND JUDGMENT *


Before KELLY, BRISCOE and LUCERO, Circuit Judges.


      Michael Eugene Price, Sr., an Oklahoma state prisoner proceeding pro se,

brought this action under 42 U.S.C. § 1983, claiming (1) that the judge and

prosecutor of Tulsa County conspired to deny him the right to a direct appeal


      *
         The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). 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judgment is not binding precedent, except under the doctrines of law of the case,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.
from his previous criminal convictions, (2) that he was denied counsel at trial in

that his court-appointed counsel improperly refused to recuse himself from Price’s

trial, and (3) that the state court erred at sentencing. The district court dismissed

Price’s complaint for failure to state a claim upon which relief may be granted.

Price appeals.

      We have held that, in appropriate circumstances, a district court may

dismiss sua sponte a pro se complaint for failure to state a claim. Whitney v.

New Mexico, 113 F.3d 1170, 1173 (10th Cir. 1997). “Such a dismissal is

appropriate only where it is ‘patently obvious that the plaintiff could not prevail

on the facts alleged, and allowing [him] an opportunity to amend [his] complaint

would be futile.’” Id. (quoting McKinney v. Oklahoma, 925 F.2d 363, 365 (10th

Cir. 1991)). We are mindful of our duty to construe pro se pleadings liberally.

See id.

      In dismissing Price’s complaint, the district court concluded that

(1) defendants the State of Oklahoma, and Ron Ward, sued in his official capacity

as the Director of the Oklahoma Department of Corrections, are entitled to

Eleventh Amendment immunity; (2) defendant Hopper, a former Tulsa County

District Court Judge, is entitled to absolute judicial immunity, and (3) defendants

Glass, Silva, Iski, Bouckadakis, and Neal are not state actors and therefore not

liable under § 1983. As to the remaining defendants, the court determined that, to


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the extent Price sought damages for an allegedly unconstitutional conviction or

sentence, Heck v. Humphrey barred his claims. 512 U.S. 488, 484 (1994)

(holding that, in order to recover damages under § 1983 for an allegedly

unconstitutional conviction or sentence, the defendant must demonstrate that the

conviction has been reversed). In addition, the court held that although 28 U.S.C.

§ 2254, not § 1983, would be the appropriate avenue for Price to challenge his

sentence and seek injunctive relief, it would be futile to convert the matter to a

habeas petition because Price previously has been denied habeas relief and has

not sought approval from this court to file a successive habeas petition.

      On appeal, Price moved to dismiss nine defendants from the complaint,

including the State of Oklahoma and Judge Hopper, essentially conceding that

these nine defendants are immune from suit. 1 As to Price’s claims against the

remaining defendants, we have carefully reviewed Price’s brief, which merely

recasts the arguments made to the district court—as well as the record on appeal.




      1
        We grant Price’s motion to dismiss as defendants the State of Oklahoma,
Clifford E. Hopper, Ron Ward, Edward Glass, Pete Silva, the Mayor of Tulsa, the
United States Department of Justice, John Doe, Charles D. Neal, Jr., and Ann
Domin.

                                         -3-
We conclude there is no merit to the appeal, and thus for substantially the same

reasons stated in the district court’s Order of December 2, 2002, we AFFIRM.

      The mandate shall issue forthwith.


                                      ENTERED FOR THE COURT

                                      Carlos F. Lucero
                                      Circuit Judge




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