Professional Documents
Culture Documents
3d 123
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
After examining the briefs and the 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); Tenth Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.
David Jay Sterling (Sterling), appearing pro se, appeals from an Memorandum
and Order of the district court granting summary judgment in favor of
appellees, Federal Bureau of Prison employees, dismissing his complaint, and
denying all relief. Following Sterling's Notice of Appeal, the district court
denied Sterling leave to proceed in forma pauperis on appeal. In order to reach
the merits, we grant Sterling's renewed Motion for Leave to Proceed in forma
pauperis on appeal.
staff had, upon discovering that inmate Pekoske had received information
through a request under the FOIA which created a potential risk to Sterling,
separated the inmates; and Sterling's allegations that the release of information
violated his rights under the FOIA had been resolved against him in a civil
action filed in the United States District Court for the District of Columbia.
7
The district court also found that Sterling had failed to establish that he had
been improperly transferred in retaliation for his legal filings; Sterling had been
transferred from the Minnesota correctional system to the federal correctional
system at the request of the Minnesota officials because Sterling "had occupied
a disproportionate amount of staff time with nuisance issues and complaints"
(R., Vol. I, Entry 56 at 7); and Sterling's housing assignment at USPL, made
after investigations and consultations with officials at other institutions where
Sterling had been incarcerated, "was consonant with the information developed
through the investigations, and, although plaintiff was dissatisfied with his
classification, the court finds no error in this decision." Id. at 8.
On appeal, Sterling contends that (1) the district court erred in granting
appellees summary judgment on the question of deliberate indifference under
Farmer v. Brennan, --- U.S. --- (1994), and (2) the district court made
impermissible credibility determinations in violation of Anderson v. Liberty
Lobby, Inc., 477 U.S. 242 (1986).
10
We hold that the district court properly applied Farmer and Anderson in
granting appellees' motion for summary judgment and in dismissing Sterling's
complaint and denying all relief. We AFFIRM substantially for the reasons set
forth in the district court's Memorandum and Order of May 12, 1995.
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