Moore v. Killam

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-20906 Conference Calendar

ROGER O. MOORE,

Plaintiff-Appellant,

versus

RONALD W. KILLAM, DR.,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. CA H 95-1209 - - - - - - - - - -

June 25, 1996 Before HIGGINBOTHAM, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Roger O. Moore, #662174, contends that the district court

abused its discretion in dismissing his complaint under 42 U.S.C.

§ 1983 against Dr. Ronald W. Killam as frivolous under 28 U.S.C.

§ 1915(d). Denton v. Hernandez, 504 U.S. 25, 34 (1992).

To prevail on a § 1983 action, a plaintiff must show that

the defendant deprived him of the right secured by the

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. No. 95-20906 - 2 -

Constitution and laws of the United States while acting under

color of state law. Manax v. McNamara, 842 F.2d 808, 812 (5th

Cir. 1988). Although Moore is now incarcerated for murdering his

wife, Moore’s allegations against Dr. Killam related to his

treatment by the physician prior to his incarceration. To the

extent that Moore asserted a medical malpractice claim against

his private physician, Dr. Killam, his § 1983 action was properly

dismissed by the district court.

In his complaint and on appeal, Moore also asserts that Dr.

Killam did not release his medical records to his defense

attorney and altered the records resulting in prejudice to

Moore’s defense in the criminal trial for the murder of Moore’s

wife. “[C]ivil tort actions are not appropriate vehicles for

challenging the validity of outstanding criminal judgment.” Heck

v. Humphrey, 114 S. Ct. 2364, 2372 (1994). In order to recover

damages for harm caused by actions whose unlawfulness would

render a conviction or sentence invalid, the “plaintiff must

prove that the conviction or sentence 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. Even if Killam could be found to be a state actor

by conspiring to convict Moore wrongly, his claim against Killam

may not be considered in the § 1983 action under the rule in Heck

because Moore had not demonstrated that his conviction and No. 95-20906 - 3 -

sentence have been invalidated. This appeal is without arguable

merit and thus frivolous. Howard v. King, 707 F.2d 219, 219-20

(5th Cir. 1983).

APPEAL DISMISSED. 5th Cir. R. 42.2.