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UNITED
STATES COURT OF APPEALS
TENTH CIRCUIT
ORDER AND JUDGMENT(*)
Before KELLY, BRISCOE, and LUCERO, Circuit Judges.(2)
Defendant-Appellant Mark D. Rice, an inmate appearing pro se, appeals
from the district court's dismissal of his 42 U.S.C. § 1983 claims under 28
U.S.C. § 1915A(b)(1) and § 1915(e)(2)(B)(ii) for failure to state a claim upon
which relief may be granted. The district court counted the dismissal as a prior
occasion pursuant to 28 U.S.C. § 1915(g). The parties are familiar with the facts
and we will not repeat them herein. The district court correctly held that (1) this
successive § 1983 action cannot be used as a discovery tool for a collateral attack
on Mr. Rice's convictions, and (2) the official capacity claim against the
individual defendant fails to allege a constitutional violation caused by a custom
or policy of the municipality. See Preiser v. Rodriguez, 411 U.S. 475,
488-90
(1973) (claim for injunctive relief is only cognizable under 28 U.S.C. § 2254);
Kutzner v. Montgomery County, 303 F.3d 339, 341 (5th Cir. 2002)
(§ 1983
action may not be used for discovery when remedy lies with § 2254); Collins v.
City of Harker Heights, 503 U.S. 115, 120-22 (1992) (constitutional violation
must be product of official custom or policy to hold municipality liable). We
affirm for substantially the reasons relied upon by the district court. R. Doc. 14.
AFFIRMED. The motion to proceed in forma pauperis is DENIED and
immediate payment of the unpaid balance of the appellate filing fee is due.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
FOOTNOTES
Click footnote number to return to corresponding location in the text.
*. This order and judgment is not binding
precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
2. After examining the briefs and the appellate
record, this three-judge
panel has determined unanimously 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(G). The cause is therefore ordered submitted without oral argument.
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