117 F3d 1428 Raymond Martinez v. Michael A. Obermeyer

117 F.3d 1428

97 CJ C.A.R. 1171

Raymond Martinez, Plaintiff-Appellant,
Michael A. OBERMEYER; Brian McCoy; Ed Camp; Harry Nimrod;
Lee Zweigle; Aristedes W. Zavaras; John Jubic;
and Richard Marr, Defendants-Appellees.

No. 97-1017.

United States Court of Appeals, Tenth Circuit.

July 14, 1997.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Before BRORBY, EBEL, and KELLY, Circuit Judges.**

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Mr. Martinez, an inmate appearing pro se and in forma pauperis, appeals from the dismissal of his civil rights action in which he seeks federal declaratory, injunctive and monetary relief based upon a Colorado conviction. To the extent that Mr. Martinez is proceeding under 42 U.S.C. § 1983, the claims are obviously barred by the rule announced in Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). On the other hand, a federal challenge to the fact of conviction or confinement, or the duration of confinement, is cognizable only under habeas corpus, Preiser v. Rodriguez, 411 U.S. 475, 499-500 (1973), with its requirement of exhaustion of state remedies, 28 U.S.C. § 2254(b)(1)(A); Preiser, 411 U.S. at 499 n. 14.


The district court dismissed the action without prejudice based upon noncompliance with its order requiring Mr. Martinez to file his 28 U.S.C. § 1915 motion and civil rights complaint on official forms and furnish a certified copy of his trust fund account, all within thirty days. Aplt.App. 49-54. We find no abuse of discretion. See Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir.1980) (per curiam), cert. denied, 450 U.S. 984 (1981).


AFFIRMED. All pending motions are DENIED.


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. 34.1.9. 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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. 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