Wendell Fletcher v. Officer David Chartrand

869 F.2d 1490, 1989 U.S. App. LEXIS 1988, 1989 WL 14015

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 22, 1989
• Docket: 88-1951
• Status: Unpublished

Opinion

869 F.2d 1490

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Wendell FLETCHER, Plaintiff-Appellant,
v.
Officer David CHARTRAND, Defendant-Appellee.

No. 88-1951.

United States Court of Appeals, Sixth Circuit.

Feb. 22, 1989.

Before KENNEDY and NATHANIEL R. JONES, Circuit Judges, and EUGENE E. SILER, Jr., Chief District Judge.*

ORDER

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

Plaintiff filed a complaint under 42 U.S.C. Sec. 1983 alleging defendant violated plaintiff's eighth and fourteenth amendment rights. Plaintiff, a black prison inmate, claimed defendant, a white prison guard, selectively enforced certain disciplinary regulations and that this selection was racially motivated. The district court ultimately dismissed the complaint for failure to state a claim for relief. The parties have briefed the issues, plaintiff proceeding pro se. Plaintiff has also filed a motion for the appointment of appellate counsel.

Upon consideration, we find the district court correctly dismissed the case at bar. It is incumbent on one asserting a fourteenth amendment equal protection claim to prove the existence of some purposeful discrimination. McCleskey v. Kemp, 481 U.S. 279, 107 S.Ct. 1756, 1766 (1987). The pleadings and accompanying evidentiary material before us demonstrate, at most, one isolated incident of uneven enforcement of a prison disciplinary regulation. Absent more, no purposeful discrimination is apparent. See Ustrak v. Fairman, 781 F.2d 573 (7th Cir.), cert. denied, 479 U.S. 824 (1986). In addition, plaintiff has completely failed to show that defendant's confiscation of several cartons of milk and antacid from plaintiff's cell amounted to deliberate indifference of a serious medical need. Estelle v. Gamble, 429 U.S. 97, 104 (1976). No eighth amendment violation is evident.

Accordingly, the motion for counsel is denied and the district court judgment is affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

* The Honorable Eugene E. Siler, Jr., Chief U.S. District Judge for the Eastern District of Kentucky, sitting by designation