* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 

### OCT 10 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DOUGLAS WEST, Plaintiff-Appellant,

v. CLYDE ADAMSON, Deputy Sheriff Murray County; ED BRISTOL, Sheriff, Murray County, Defendants-Appellees. No. 97-7038 (E. District of Oklahoma) (D.C. No. 93-CV-713-S)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, PORFILIO and MURPHY , Circuit Judges.
After examining the briefs and the appellate record , this three-judge panel has unanimously determined that oral argument wouldnot 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 sub mitted without oral argument.-2-

Douglas West, proceeding pro se , appeals the district court’s dismissal of his complaint pursuant to Fed. R. Civ. P. 12(b)(6) and 28 U.S.C. 1915(e). West’s complaint, brought pursuant to 42 U.S.C. § 1983, al leged that the defendants, Clyde Adamson and Ed Bristol, withheld three pieces of his outgoing mail and at least one piece of his incoming mail, thereby precl uding West from developing evidence crucial to his defense. West further alle ged that the defendants showed the three outgoing letters to his wife in an attemp t to get her to divorce West. West prayed for monetary relief as well as the reve rsal of his conviction. Upon review of West’s complaint, the district courtconcluded that West sought both habeas relief and relief pursuant to § 1983. As to West’s claim for habeas relief, the district court dismissed the pet ition on the grounds that West had not exhausted his state court remedies. The di strict court then proceeded to stay West’s § 1983 claims pursuant to Heck v. Humphrey , 114 S. Ct. 2364, 2372 (1994) (When judgment for a plaintiff in a § 1983 s uit “would necessarily imply the invalidity of his conviction or sentence, . . . the complaint must be dismissed unless the plaintiff can demonstrate that the convi ction or sentence has already been invalidated.”). After the state district court denied West’s petition for postconviction relief, the district court revisited the stayed § 1983 claims. As to West’s claims that the defendants acted to destroy his marriage, the district court dismissed the claim as frivolous pursuant to 28 U.S .C. § 1915(e) on the grounds1 This court reviews de novo the district court’s dismissal pursuant to Fed.

R. Civ. P. 12(b)(6). Brumark Corp. v. Samson Resources Corp. , 57 F.3d 941, 944 (10th Cir. 1995). We review the district court’s § 1915(e) dismissal of West’s claim relating to the defendant’s alleged attempt t o destroy his marriage for abuse of discretion. McWilliams v. Colorado , No. 96-1328, 1997 WL 452575, at *1 (10th Cir. Aug. 1, 1997). -3- that West’s claims were vague, conclusory, and lack ed an arguable basis either in law or fact. As to the remainder of West’s § 1983 claims, the district court dismissed without prejudice to refiling should Westultimately prevail on his habeas corpus claims in either state or federal court. West appeals. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms

. This court has reviewed the parties briefs and cont entions and the entire record on appeal. 1 Based on that review, we affirm for substantiallythe reasons set forth in the district court’s orders dated Apri l 28, 1994, and January 22, 1997. We further find that this appeal is frivolous or fa ils to state a claim under 28 U.S.C. § 1915(e)(2)(B) for purposes of counting “pr ior occasions” under 28 U.S.C. § 1915(g). ENTERED FOR THE COURT:
Michael R. Murphy Circuit Judge