Childers v. Newberry

• Court: Court of Appeals for the Tenth Circuit
• Decided: November 2, 2000
• Docket: 00-5065
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS NOV 2 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

GARY DEAN CHILDERS,

Plaintiff-Appellant,

v. No. 00-5065 (D.C. No. 99-CV-84-BU) MAX NEWBERRY, Regional (N.D. Okla.) Supervisor, Oklahoma State Industries; BOB TOMLINSON, Supervisor V, Oklahoma State Industries; DANNY BROWN, Supervisor IV, Oklahoma State Industries; DON ALLEN, Low-Grade Supervisor, Oklahoma State Industries,

Defendants-Appellees.

ORDER AND JUDGMENT *

Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Gary Dean Childers appeals from summary judgment granted in favor of

defendants on his claim brought pursuant to 42 U.S.C. § 1983. Our jurisdiction

arises under 28 U.S.C. § 1291, and we affirm.

The essential facts are undisputed. Mr. Childers, a pro se state prisoner,

claims that defendants forced him to work in unsafe conditions for the Oklahoma

Department of Corrections, resulting in his physical injury. In 1997, he brought

a suit for damages caused by that injury in state court under the Oklahoma

Governmental Tort Claims Act. The state court dismissed the suit for failure to

comply with the requirements of the Act. A year later, Mr. Childers moved to

amend his claim to add a cause of action under § 1983. The state court denied the

motion, and the Oklahoma Court of Civil Appeals affirmed that denial, holding

that allegations of negligence did not state a claim under § 1983.

In 1999, Mr. Childers filed suit in federal court based on the same set of

facts, alleging that defendants violated § 1983 by being deliberately indifferent

to his safety. The district court determined that Mr. Childers’ claim was barred

by the doctrine of res judicata because his attempt in state court to bring the

§ 1983 claim raised the identical factual premise that was rejected on the merits

and that Mr. Childers could have alleged deliberate indifference at that time.

-2- See R. Doc. 34, at 3-4. On appeal, Mr. Childers argues that the doctrine is not

applicable to his case because (1) his action in state court was based upon

negligence, while his federal claim was based upon deliberate indifference; and

(2) his state court action was originally brought for violation of the state

governmental tort claims act and not for violation of § 1983. We review the

district court’s ruling de novo. See Plotner v. AT&T Corp. , 224 F.3d 1161, 1168

(10th Cir. 2000).

Based on our review of the appellate record, the briefs, and the pertinent

law, we conclude that the district court correctly decided this issue. We reject

Mr. Childers’ claim that the district court judge is somehow biased against him

because the judge is allegedly currently presiding over a heavily-contested

prisoner civil rights case. Mr. Childers does not claim that he is a plaintiff in that

case, nor has he alleged any other facts that would support a finding of actual or

presumptive bias. See Fero v. Kerby , 39 F.3d 1462, 1479 (10th Cir. 1994)

(discussing requirements for establishing judicial bias).

Therefore, for substantially the same reasons stated in the district court’s

memorandum opinion and order dated March 30, 2000, the judgment of

the United States District Court for the Northern District of Oklahoma is

AFFIRMED, and the mandate shall issue forthwith. We DISMISS Mr. Childers’

-3- application for a certificate of appealability, as none is required in a civil rights

appeal. Finally, we remind Mr. Childers that he is obligated to continue making

partial payments to this court until the entire costs for this appeal have been paid.

Entered for the Court

Stephen H. Anderson Circuit Judge

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