* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### JAN 28 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

DOROTHY MARIE CARTER,

Plaintiff-Appellant,

v. HOBBS POLICE DEPARTMENT; BILL MORRILL, Police Chief; PAM WYNN, JAMES PHILLIPS, Officers, Hobbs Police Department; LEA COUNTY SHERIFF’S DEPARTMENT; BILL LANE, Sheriff; and CLARENCE BENFORD, SR., Deputy Sheriff,

Defendants-Appellees. No. 97-2045 (D.C. No. CIV-96-1575) (D. N.M.)

ORDER AND JUDGMENT *

Before PORFILIO , KELLY , and HENRY , Circuit Judges.1 Although the district court indicated its dismissal was pursuant to

§ 1915(d), we believe the court actually intended t o cite § 1915(e)(2)(B)(i), which formerly was § 1915(d).

2 Although the district court also cited to Rule 12(b )(6), its discussion appeared to center on whether the complaint was fri volous. Thus, we review only for frivolousness. In doing so, we need not resolv e the problematic issue of the standard of review applicable to dismissals under b oth § 1915(e)(2)(B)(i) for frivolousness and Rule 12(b)(6) for failure to stat e a claim upon which relief may be granted. The standard of review for § 1915(e)(2 )(B)(i) dismissals, as indicated above, is abuse of discretion. See Schlicher , 111 F.3d at 779. Whereas, the standard of review for Rule 12(b)(6) dismissals is de novo. See Chemical Weapons Working Group, Inc. v. United States Dep’t of the Army , 111 F.3d 1485, 1490 (10th Cir. 1997). -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff appeals the district court’s dismissal of her pro se civil rights action under Fed. R. Civ. P. 12(b)(6) for failure t o state a claim upon which relief may be granted and under 28 U.S.C. § 1915(d) 1 for frivolousness. We review a dismissal pursuant to § 1915(e)(2)(B)(i) for an abu se of discretion. 2See Schlicher v. Thomas , 111 F.3d 777, 779 (10th Cir. 1997). A complaint is frivolous if it lacks an arguable basis in law or f act. See Green v. Seymour , 59 F.3d 1073, 1077 (10th Cir. 1995) (citing Neitzke v. Williams , 490 U.S. 319, 325 (1989)). In applying these standards, we liber ally construe plaintiff’s pro se complaint. See Haines v. Kerner , 404 U.S. 519, 520-21 (1972).-3-

In her complaint, plaintiff alleged that she was tw ice falsely arrested by defendant Hobbs Police Department: first on battery charges and later for contempt and failure to appear at a court hearing. Plaintiff’s first arrest apparently was based upon probable cause. Plaintif f, however, fails to allege facts to dispute probable cause for the arrest. Se e Brown v. Zavaras , 63 F.3d 967, 972 (10th Cir. 1995) (pro se litigants must do more than make conclusory statements regarding constitutional claims). The second arrest was pursuant to a bench warrant. “Just as judges acting in their judicial capacities are absolutely immune from liability under [42 U.S.C. §] 1983, . . . ‘[police officers] charged with the duty of executing a facially valid court order enjoy[] absolute immunity from liability for damages in a suit challenging conduct prescribed by that order.’” Turney v. O’Toole , 898 F.2d 1470, 1472 (10th Cir. 1990) (quoting Valdez v. City& County of Denver , 878 F.2d 1285, 1286 (10th Cir. 1989)). Even if the judge issued an erroneous bench warrant for arrest for failure to appear and for contempt, as plaintiff alleged, she must contest the legality of the warrant and appeal that judgment rather than sue the official responsible for execut ing the warrant. See Valdez , 878 F.2d at 1289-90. Plaintiff alleged defendant deputy sheriff Clarence Benford, Sr. tried to coerce her to change her plea of not guilty to batt ery to a plea of no contest,3 Plaintiff raised various allegations against a magi strate judge and a

harassment claim against four guards at the Lea County Detention Center. Because these persons were not named as parties to this action, we need not address the conclusory allegations made against the m. -4- allegedly warning her that if she did not change he r plea she would be jailed. Because plaintiff did not change her plea, any alle ged coercion by defendant Benford had no affect on plaintiff. Plaintiff also maintained that defendant Benford conspired with two magistrate judges and a private citizen to deny her due process and force her into an alcohol rehabilit ation treatment program. Plaintiff, however, did not allege specific facts s howing conspiracy, and her conclusory allegations of conspiracy are insufficie nt for a § 1983 claim. See Durre v. Dempsey , 869 F.2d 543, 545 (10th Cir. 1989). Plaintiff further contended that defendant Benford intercepted her out-going mail during her confinement in the Lea County Detention Center. 3 The district court correctly determined that her claim of interception of her out-going mail by defendant Benford was conclusory. Plaintiff alleged that she was denied a fair trial and her right to counsel during the state court proceedings. We agree with the district court’s determination that she did not allege any facts eve n remotely connected with the named defendants to support this claim. We also ag ree with the district court that-5-

a § 1983 action is not the proper vehicle to challe nge the validity of her conviction. See Heck v. Humphrey , 512 U.S. 477, 486 (1994). [I]n order to recover damages for allegedly unconst itutional conviction or imprisonment, or for other harm cause d by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive or der, declared invalid by a state tribunal authorized to make suchdetermination, or called into question by a federal court’s issuance of a writ of habeas corpus . . . . Id. at 486-87 (footnote omitted). Because plaintiff’s conviction had not been invalidated, her claim for damages was not cognizab le. See id. at 487. Plaintiff contended that after sentencing on the co ntempt and failure to appear charges she was falsely imprisoned in the Le a County Detention Center. “[A] plaintiff states a claim for false imprisonment in violation of § 1983 by specifically alleging facts that show a government official acted with deliberate indifference or reckless intent to falsely imprisonthe plaintiff.” Romero v. Fay , 45 F.3d 1472, 1480 (10th Cir. 1995). Plaintiff mak es no such allegations. In any event, because her imprisonment was based upon her conviction, this claim is without legal basis. Plaintiff alleged that while confined in the Hobbs city jail she was denied medical treatment for severe abdominal pains by def endants police officers Pam Wynn and James Phillips. According to plaintiff, i n addition to denying medical treatment, they yelled at her when she requested pa in medication and antagonized-6-

her throughout the course of her confinement. She also contended that defendant Wynn issued her a filthy uniform, resulting in her contracting “Trichomonais.” The district court correctly determined that plaint iff’s claim of denial of medical treatment was conclusory. To state a cognizable cl aim, a plaintiff must allege omissions or acts sufficiently harmful to suggest d eliberate indifference to serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 105 (1976). The deliberate indifference standard has two components: “[1] an objective component requiring that the pain or deprivation be sufficiently seriou s; and [2] a subjective component requiring that the offending officials ac t with a sufficiently culpable state of mind.” Miller v. Glanz , 948 F.2d 1562, 1569 (10th Cir. 1991) (citing Wilson v. Seiter , 501 U.S. 294, 298 (1991)). Plaintiff did not all ege facts establishing a serious medical condition or assert any culpable mental state of defendants Wynn or Phillips. Mere verbal abuse is not a constitutional violation actionable under § 1983. See Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979). Plaintiff maintained that she complained in writing to defendant Chief of Police Bill Morrill about the actions of defendants Wynn and Phillips, but defendant Morrill did not respond. Because plainti ff’s arguments against defendants Wynn and Phillips lack an arguable basis in law or fact, this allegation against defendant Morrill is without merit.-7-

Plaintiff argues for the first time on appeal that defendant Benford conspired with defendant Hobbs Police Department an d a magistrate judge to deny her a fair trial and obstructed justice by des troying unnamed documents and that the denial of medical treatment was racially m otivated. We will not consider these conclusory issues raised for the first time o n appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992). Plaintiff suggests that she should be granted an op portunity to amend her complaint. Although plaintiff did not move to amen d in the district court, the district court nonetheless determined that amending the complaint would be futile. We agree. See Foman v. Davis , 371 U.S. 178, 182 (1962) (futility justifies deni al of amendment). Plaintiff contends that due to her pro se status sh e was forbidden to attach documents to her complaint. Nothing before us, oth er than plaintiff’s unsupported allegation, indicates that she attempte d to submit evidence with her complaint that was rejected. Plaintiff indicated i n her complaint that she was attaching exhibits, but she did not do so. Plaintiff attached to her brief on appeal a copy of the habeas corpus petition she allegedly filed in state court. This exhibit w as not presented to the district court, and we will not review it. See Aero-Medical, Inc. v. United States , 23 F.3d 328, 329 n.2 (10th Cir. 1994).-8-

Because there are no facts or law from which a clai m may be inferred, we conclude the district court correctly determined th is action was frivolous. The appeal is frivolous under 28 U.S.C. § 1915(e)(2)(B) (i) for purposes of counting “prior occasions” under 28 U.S.C. § 1915(g). The appeal is DISMISSED. The mandate shall issue forthwith.

Entered for the Court

John C. Porfilio Circuit Judge