Alfred Brooks, Plaintiff-appellant, v. Steve Lucas, Detective; Norman Police Department; and Thecity of Norman, Defendants-appellees, 38 F.3d 1220 (10th Cir. 1994)

Before MOORE and ANDERSON, Circuit Judges, and BRIMMER,^**  District Judge.

After examining the briefs and 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); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument.

Plaintiff appeals the district court's order adopting the magistrate judge's recommendation (1) granting defendant Lucas' motion for judgment on the pleadings; (2) granting defendants' Norman Police Department and the City of Norman motion to dismiss for failure to state a claim; (3) denying plaintiff's discovery motions and his motion to amend the complaint; and (4) dismissing the action. We have jurisdiction under 28 U.S.C. 1291, and we affirm.

Plaintiff's complaint, brought pursuant to 42 U.S.C.1983, alleged that defendant Lucas, a detective with the City of Norman Police Department, made false and defamatory statements about plaintiff, and those statements were published in the Norman Transcript. The statements in question concerned alleged ballistics tests that purported to connect the gun used in the crimes for which plaintiff is serving a life sentence with an unsolved homicide in the Norman, Oklahoma area. Plaintiff asserts that the statements linking him to the Norman homicide were untrue, and that publication of them adversely affected his opportunities for parole and participation in prison rehabilitation programs.

We review de novo the district court's grant of a motion to dismiss for failure to state a claim to determine if plaintiff is legally able to prove any set of facts entitling him to relief. Airparts Co. v. Custom Benefit Servs. of Austin, Inc., 28 F.3d 1062, 1064 (10th Cir. 1994). Our review of the district court's grant of judgment on the pleadings is also de novo. Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 528-29 (10th Cir. 1992). A review for abuse of discretion is employed for the district court's refusal to grant discovery, Building & Constr. Dep't v. Rockwell Int'l Corp., 7 F.3d 1487, 1496 (10th Cir. 1993), and its denial of the motion to amend the complaint, Frank v. U.S. West, Inc., 3 F.3d 1357, 1366 (10th Cir. 1993).

We have carefully considered the parties' briefs, the record submitted on appeal, and the applicable law. We affirm the district court's dismissal of plaintiff's complaint for substantially the reasons stated in the district court's order dated March 23, 1994.

The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.