Brack v. Gardner

946 F.2d 900, 1991 U.S. App. LEXIS 26101, 1991 WL 216804

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 23, 1991
• Docket: 91-1051
• Status: Published

Opinion

946 F.2d 900

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

Charles Elliott BRACK, Plaintiff-Appellant,
v.
Bill GARDNER, Sheriff of La Plata County; Al Bell; Ray
Mayer; Jack Griffith; Tracy Mattison; Betty
Graves; Dr. Alfred Bedford; Annetta
McGloughlin, Defendants-Appellees.

No. 91-1051.

United States Court of Appeals, Tenth Circuit.

Oct. 23, 1991.

Before McKAY, Chief Judge, and SEYMOUR and EBEL, Circuit Judges.

ORDER AND JUDGMENT*

McKAY, Circuit Judge.

The parties have agreed that this case may be submitted for decision on the briefs. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.2. The case is therefore ordered submitted without oral argument.

Mr. Charles Elliott Brack filed an action under 42 U.S.C. § 1983, alleging that various officials at La Plata County Sheriff's Department violated his civil rights while he was a pre-trial detainee in La Plata County Jail. Defendants moved for summary judgment. The district court referred the matter to a United States Magistrate Judge, who recommended that the motion be granted. The district court adopted the magistrate judge's recommendation and dismissed petitioner's complaint. Mr. Brack now appeals from the district court's order as to the third and fifth counts of his complaint, which allege inadequate medical care and unconstitutionally imposed administrative segregation.

"In reviewing a summary judgment order, the appellate court applies the same standard employed by the trial court under Rule 56(c) of the Federal Rules of Civil Procedure." Osgood v. State Farm Mut. Auto. Ins. Co., 848 F.2d 141, 143 (10th Cir.1988). Dismissal under 42 U.S.C. § 1983 is appropriate if plaintiff can prove no set of facts that would entitle him to relief. Meade v. Grubbs, 841 F.2d 1512, 1526 (10th Cir.1988). After thorough review of the record and pleadings, we conclude that the district court correctly dismissed petitioner's complaint. The facts pleaded by Mr. Brack do not rise to the level of a constitutional violation. Whitley v. Albers, 475 U.S. 312, 320-21 (1986).

Mr. Brack also alleges that the district court abused its discretion by denying him additional discovery time when it dismissed his complaint. After reviewing the record, we conclude that the district court acted within its discretion when it declared petitioner's Motion for Extension of Time moot in view of its dismissal of his complaint. Weir v. Anaconda Co., 773 F.2d 1073, 1082 (10th Cir.1985).

We therefore AFFIRM the district court order for substantially the reasons set out therein. The mandate shall issue forthwith.

* This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir.R. 36.3