Professional Documents
Culture Documents
TENTH CIRCUIT
DEC 3 1999
PATRICK FISHER
Clerk
No. 99-5107
Defendants-Appellees.
ORDER AND JUDGMENT
This order and judgment is not binding precedent, except under the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.
*
, 157
Cir. 1999) (Pretrial detainees are protected under the Due Process Clause rather
than the Eighth Amendment.).
The district court also dismissed Dubucs case against medical defendants
Isaac, Johnson, Rodriguez, and Russell because Dubucs allegations against them
did not rise to the level of deliberate indifference. To state a claim, Dubuc must
allege acts or omissions sufficiently harmful to evidence deliberate indifference
to serious medical needs.
reviewing the record, we conclude Dubuc failed to state a claim against the
medical defendants.
[Dubucs] case, the present procedural posture of the case, the nature of the
factual issues involved, [Dubucs] ability to investigate the crucial facts, the
probable type of evidence, [Dubucs] capability to present his case, and the
complexity of the legal issues. Record Doc. 59 at 6. After reviewing the
record, we find that the district court did not abuse its discretion in not
appointing counsel for Dubuc.
Building and
07 (10th Cir. 1990). Therefore, the district court erred in using lack of physical
injury as a basis to grant summary judgment on Dubucs excessive force claims.
The district court refused to consider Dubucs newly discovered evidence of a
witness to the incident because it did not affect the courts conclusion that Dubuc
failed to prove he had suffered any physical injury. As we have concluded the
courts reliance upon the absence of evidence of physical harm was erroneous,
the court also erred when it relied upon the same rationale in rejecting Dubucs
newly discovered evidence. The court should reconsider that ruling upon
remand.
The district court granted summary judgment to defendants on Dubucs
condition of confinement claims, finding Dubuc did not establish the existence of
5
Harlow v. Fitzgerald ,
457 U.S. 800, 818 (1982). Dubuc does not attack the substance of the district
courts finding that whether a pretrial detainee was entitled to procedural due
process for disciplinary confinement was not clearly established. Whether the
law was clearly established is a legal question, not appropriate for jury review.
The district court did not err in granting summary judgment on Dubucs
procedural due process claims.
VI.
The district court denied Dubucs motion for leave to proceed on appeal in
forma pauperis under 28 U.S.C. 1915(g), finding Dubuc had brought three prior
6
civil actions that were dismissed as frivolous or malicious or for failure to state a
claim. However, the court erred in counting Dubucs appeal in
Dubuc v. City of
Tulsa , No. 97-CV-650-B (N.D. Okla. 1998), because that appeal was pending
when Dubuc filed his notice of appeal in this case,
1999 WL 668823 (10th Cir. 1999).
Center Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (finding that
unexhausted proceedings are not counted for purposes of 1915(g)). The district
court erred in denying Dubuc leave to proceed on appeal in forma pauperis under
1915(g).
Dubucs motion to proceed on appeal in forma pauperis is GRANTED.
Defendants motion to dismiss the appeal is DENIED. The decision of the
district court is AFFIRMED IN PART and REVERSED AND PART, and this
matter is REMANDED for further proceedings on Dubucs excessive force claim.
Entered for the Court
Mary Beck Briscoe
Circuit Judge