Gomm v. Deland

931 F.2d 62, 1991 U.S. App. LEXIS 15134, 1991 WL 59954

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 22, 1991
• Docket: 90-4032
• Status: Unpublished

Opinion

931 F.2d 62

Unpublished Disposition
NOTICE: Tenth Circuit Rule 36.3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.
Clyde C. GOMM, Plaintiff-Appellant,
v.
Gary DELAND, Director, Utah State Department of Corrections,
Gerald Cook, Warden, Utah State Prison, Blen Freestone,
Medical Director, John Middleton, M.D., Eric Call, Nurse
Practitioner, Leonard Higley, Capt. Karl Bartell, Marion
Painter, Roger Burnett, Ronald Benson, and Carol Horlacher,
Defendants-Appellees.

No. 90-4032.

United States Court of Appeals, Tenth Circuit.

April 22, 1991.

Before STEPHEN H. ANDERSON and TACHA, Circuit Judges, and KANE,* District Judge.

ORDER AND JUDGMENT**

TACHA, Circuit 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 from an adverse judgment entered by the district court following a bench trial of his deliberate indifference claims brought under 42 U.S.C. Sec. 1983 and the eighth and fourteenth amendments. The district court's lengthy opinion, reviewing the voluminous evidentiary record and incorporating extensive findings pursuant to Fed.R.Civ.P. 52, is published at Gomm v. DeLand, 729 F.Supp. 767 (D.Utah 1990).

Plaintiff argues on appeal that the district court erred in determining that defendants did not act with deliberate indifference in connection with the care and treatment afforded plaintiff for his medical problems while an inmate at the Utah State Prison. Since deliberate indifference is a question of fact, see, e.g., Liscio v. Warren, 901 F.2d 274, 276 (2d Cir.1990); Greason v. Kemp, 891 F.2d 829, 835 (11th Cir.1990); Ortiz v. City of Imperial, 884 F.2d 1312, 1314 (9th Cir.1989), we review the district court's determination only for clear error, see Anderson v. City of Bessemer City, 470 U.S. 564, 573-74 (1985); Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 501 (1984). Upon review of the district court's decision in light of the arguments and authorities urged by the parties, we are not left with a "definite and firm conviction that a mistake has been committed," Anderson, 470 U.S. at 573, and, accordingly, affirm.

The judgment of the United States District Court for the District of Utah is AFFIRMED.

* Honorable John L. Kane, Senior District Judge, United States District Court for the District of Colorado, sitting by designation

** 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