*After examining appellant’s brief and the appellate record, this panel has

determined unanimously that oral argument would not materially assist the

determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.

34.1(G). The case 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order and judgment is not binding precedent, except under the doctrines of law of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. 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.

1Plaintiff has proceeded pro se throughout this action.

F I L E D

United States Court of Appeals

Tenth Circuit

FEB 27 2003

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PHILIP C. BUTLER,

Plaintiff - Appellant,

v.

JAMES A. BUTIERRES; JOSHUA

BLISS,

Defendants - Appellees.

No. 02-1334

(D.C. No. 00-BB-1729)

(D. Colorado)

ORDER AND JUDGMENT*

Before EBEL, HENRY and HARTZ, Circuit Judges.

Plaintiff Philip C. Butler (“Plaintiff”)1 commenced this prisoner civil rights

action in the District of Colorado on September 19, 2000, alleging that his Fourth

Amendment rights were violated when Colorado Springs police officers James A.

Butierres and Joshua Bliss used excessive force in his arrest. (Complaint
- 2 -

09/19/00.) He later attempted to amend his Complaint to add a claim that his

civil rights were violated because he was arrested without sufficient probable

cause. (Amended Compl. 07/02/01.) The district court found in favor of the

defendants on both claims. We exercise jurisdiction pursuant to 28 U.S.C. § 1291

and AFFIRM.

Plaintiff’s Probable Cause Claim

The district court struck the portion of Plaintiff’s Amended Complaint that

alleged he had been arrested without sufficient probable cause because this claim

exceeded the leave given to Plaintiff to amend and because it attacked the validity

of Plaintiff’s conviction. (Order 07/16/01.) As the district court noted, Heck v.

Humphrey, 512 U.S. 477 (1994), prohibits a plaintiff from attacking the validity

of a criminal conviction under 42 U.S.C. § 1983 unless that conviction has been

“reversed on direct appeal, expunged by executive order, declared invalid by a

state tribunal authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.” Id. at 486-87. Because

Plaintiff has satisfied none of these criteria, we AFFIRM the district court’s

dismissal of this claim.
2Because the parties consented to disposition by the magistrate judge, we

may review this disposition without intervening review by the district court. 28

U.S.C. § 636(c). We apply the same standards of review to the magistrate judge’s

decision as we would to that of the district court. Grimsley v. McKay, 93 F.3d

676, 679 (10th Cir. 1996).

- 3 -

Plaintiff’s Excessive Force Claim

On June 24, 2002, Plaintiff proceeded to trial on his § 1983 claim that the

Defendants used excessive force in his arrest. This claim is based on the officers’

use of a police dog to capture Plaintiff after he fled from a stolen vehicle, which

he was driving while intoxicated. The magistrate judge presided over the bench

trial, made findings of fact and conclusions of law, and entered judgment in favor

of Defendants. (Order 06/26/02.) Applying Graham v. Connor, 490 U.S. 386

(1989), he concluded that the force used by the police officers was not objectively

unreasonable; therefore, the officers did not violate Plaintiff’s Fourth Amendment

rights. (Order 06/26/02 at 3-5.)

Plaintiff argues on appeal that the district court erred in its findings of fact

related to the capture and arrest. (Aplt. Br. at 14-18.) We review a district

court’s findings of fact for clear error. Fed R. Civ. P. 52(a).2 We will not

overturn a finding unless it is without support in the factual record or, after

reviewing all of the evidence, we are left with a definite and firm conviction that

a mistake has been committed. Grimsley v. McKay, 93 F.3d 676, 679 (10th Cir.

1996). 
3The partial transcript includes Plaintiff’s direct examination of himself and

Plaintiff’s examination of the other witnesses. It omits Defendants’ crossexamination of Plaintiff, as well as Defendants’ examination of the other

witnesses. (See Partial Transcript, Vol. 1, at 22, 27, 28, 40, 51, 54, 66, 69, 70,

71, 72, 84, 98.)

- 4 -

Plaintiff contests two findings made by the district court: 1) that Officer

Butierres warned Plaintiff that the police dog would be released (Aplt. Br. at 14);

and 2) that Officers Bliss and Butierres had no factual basis for their asserted

belief that Plaintiff had stolen a car and was fleeing from arrest when they

released the police dog on Plaintiff. (Aplt. Br. at 15-16.) 

“If the appellant intends to urge on appeal that a finding or conclusion is

unsupported by the evidence or is contrary to the evidence, the appellant must

include in the record a transcript of all evidence relevant to that finding or

conclusion.” Fed. R. App. P. 10(b)(2). In this case, Plaintiff has provided only

portions of the trial transcript and has omitted the cross-examination of witnesses

whose testimony is essential to the resolution of his claims.3

 Thus, based on the

record that Appellant has provided, we are unable to conclude that the district

court’s findings are clearly erroneous. Naimie v. Cytozyme Labs., Inc., 174 F.3d

1104, 1113 (10th Cir. 1999) (“[W]here appellant fails to submit sufficient

portions of the record, ‘an appellate court cannot review the district court’s

factual findings and must accept them as correct.’”) (quoting Trujillo v. Grand
- 5 -

Junction Reg’l Ctr., 928 F.2d 973, 976 (10th Cir. 1991)); Green v. Johnson, 977

F.2d 1383, 1387 (10th Cir. 1992).

Plaintiff also argues that the district court erred in concluding that the

officers’ actions were objectively reasonable. (Aplt. Br. at 15-20.) Relying on

the district court’s findings of fact, we review this question of law de novo. 

Grimsley, 93 F.3d at 679; Trujillo, 928 F.2d at 976 (where neither party submitted

the trial transcript as part of the record on appeal, review was “limited to

determining whether the district court properly applied the law to the facts”). For

substantially the reasons stated by the district court in its Findings of Fact and

Conclusions of Law (Order 06/26/02 at 3-5), we affirm the district court’s

conclusion that Officers Butierres and Bliss acted in an objectively reasonable

manner.

For the foregoing reasons, the judgment of the district court is AFFIRMED.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge