Harvey G. Wilson v. James L. Moon

38 F.3d 1221, 1994 U.S. App. LEXIS 37168, 1994 WL 582747

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 21, 1994
• Docket: 93-7106
• Status: Published

Opinion

38 F.3d 1221
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Harvey G. WILSON, Plaintiff-Appellant,
v.
James L. MOON, Defendant-Appellee.

No. 93-7106.

United States Court of Appeals, Tenth Circuit.

Oct. 21, 1994.

Before TACHA, BRORBY, and EBEL, Circuit Judges.

ORDER AND JUDGMENT1

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-Appellant, an inmate at an Oklahoma Correctional Center, brought this pro se action in the federal district court pursuant to 42 U.S.C.1983.2 The plaintiff alleged that he injured his foot from repeatedly jumping down to the floor of his cell from his assigned upper bunk. Although the plaintiff received medical treatment from doctors on several occasions, his injury persisted. Thereafter, he brought this suit against Warden James L. Moon, arguing that the failure to equip his cell with a ladder or to allow him to undergo surgery constituted cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution.

The district court granted the defendant's motion to dismiss for failure to state a claim upon which relief can be granted, holding that the plaintiff failed to allege sufficient evidence that the defendant was personally involved in the incident, see Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976), or had demonstrated "deliberate indifference" to Plaintiff's "serious medical needs," Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). The plaintiff timely appealed the dismissal of his suit. For the reasons stated by the district court, we AFFIRM.

1 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 the court's General Order filed November 29, 1993. 151 F.R.D. 470

2 The district court granted the plaintiff's application to proceed in forma pauperis, pursuant to 28 U.S.C.1915(a)