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

determined unanimously that oral argument would notmaterially 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 w ithout oral argument. This order and judgment is not binding precedent, exceptunder the doctrines of law of the case, res judicata, and collateral estoppel. T he 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.

1 Plaintiff has proceeded pro se throughout this acti on. 

## 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 Spring s 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 Complai nt 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 co urt found in favor of the defendants on both claims. We exercise jurisdictio n 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 pro bable 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 unl ess that conviction has been “reversed on direct appeal, expunged by executive o rder, declared invalid by a state tribunal authorized to make such determinatio n, 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.2 Because the parties consented to disposition by the magistrate judge, we

may review this disposition without intervening rev iew by the district court. 28 U.S.C. § 636(c). We apply the same standards of re view 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 h is § 1983 claim that the Defendants used excessive force in his arrest. Thi s claim is based on the officers’ use of a police dog to capture Plaintiff after he f led from a stolen vehicle, which he was driving while intoxicated. The magistrate j udge 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 pol ice 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 1 4-18.) We review a district court’s findings of fact for clear error. Fed R. C iv. 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 d efinite and firm conviction that a mistake has been committed. Grimsley v. McKay , 93 F.3d 676, 679 (10th Cir. 1996).3 The partial transcript includes Plaintiff’s direct examination of himself and

Plaintiff’s examination of the other witnesses. Itomits Defendants’ crossexamination of Plaintiff, as well as Defendants’ ex amination 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 distric t court: 1) that Officer Butierres warned Plaintiff that the police dog woul d be released (Aplt. Br. at 14); and 2) that Officers Bliss and Butierres had no fac tual basis for their asserted belief that Plaintiff had stolen a car and was flee ing 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 e vidence, 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 ca se, Plaintiff has provided only portions of the trial transcript and has omitted th e cross-examination of witnesses whose testimony is essential to the resolution of h is claims. 3 Thus, based on the record that Appellant has provided, we are unable t o 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 fai ls 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. Joh nson , 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. (Ap lt. Br. at 15-20.) Relying on the district court’s findings of fact, we review th is 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 appea l, review was “limited to determining whether the district court properly app lied the law to the facts”). For substantially the reasons stated by the district co urt in its Findings of Fact and Conclusions of Law (Order 06/26/02 at 3-5), we affi rm 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