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White v. State of Colorado, 10th Cir. (1998)
White v. State of Colorado, 10th Cir. (1998)
JUN 23 1998
PATRICK FISHER
Clerk
RICHARD C. WHITE,
Petitioner-Appellant,
v.
STATE OF COLORADO; CHERYL
SMITH, Medical Supervisor; MARK
MCKINNA, Warden; ORVILLE
NEUFELD, Medical Supervisor;
WILLIAM AUTREY, M.D., Medical
Supervisor; JACK DIAMOND, M.D.,
Psychiatrist; DEPARTMENT OF
CORRECTIONS; GALE NORTON,
Attorney General for the State of
Colorado; WELLINGTON WEBB;
S. SUNDELL; DR. L. SANDER, Four
John, Jane Does, Medical Staff,
Denver County Jail Medical
Department, City of Denver,
No. 97-1288
(D.C. No. 95-D-1500)
(D. Colo.)
Respondents-Appellees.
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.
Petitioner-Appellant Richard C. White appeals from the district courts
order granting summary judgment to respondents-appellees on his petition for writ
of habeas corpus pursuant to 28 U.S.C. 2254. We affirm.
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proper remedy for a state prisoner who is making a constitutional challenge to the
conditions of his prison life, but not to the fact or length of his custody.).
We review summary judgment rulings de novo, applying the same
standard as the district court. Summary judgment is proper when
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that
there is no genuine issue to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(c). When a moving party makes a properly supported summary
judgment motion, the nonmoving party has the burden of showing a
genuine issue for trial, by any of the kinds of evidentiary materials
listed in Rule 56(c), except the mere pleadings themselves.
Pietrowski v. Town of Dibble , 134 F.3d 1006, 1008 (10th Cir. 1998) (further
citations and quotations omitted).
A prisoner may establish an Eighth Amendment violation by showing
deliberate indifference to [his] serious medical needs on the part of his jailors.
Estelle v. Gamble , 429 U.S. 97, 104 (1976). Deliberate indifference is more than
mere negligence; a negligent failure to provide adequate medical care, even one
constituting medical malpractice, does not rise to the level of a constitutional
violation. See id. at 105-06.
Petitioner suffers from a broad range of physical complaints. He has been
seen in the prison infirmary a very considerable number of times over a three-year
period for these complaints. Having carefully reviewed the summary judgment
materials pertaining to petitioners medical problems and the care he has received
for them, we agree with the district court that petitioner has failed to show that
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Cir. 1980). Nor has he shown that any delays he experienced in receiving care
were the result of deliberate indifference which resulted in substantial harm to
him. See Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993). Accordingly, we
affirm the district courts order of summary judgment on the merits.
We further reject petitioners other challenges to the district courts
disposition of this case. He contends that the district court should have granted
his motion for default judgment. This issue is without merit. Respondents were
not served with process in this action until September 21, 1995, when they
executed and filed a waiver and acceptance of service. Four days later,
respondents filed their motion to dismiss and/or for summary judgment. They are
not in default.
stay there in October 1995. Petitioner sought to amend his complaint to add
claims against these defendants. The district court acted within its discretion in
denying leave to amend; petitioners claims against these potential defendants
were entirely separate and distinct from the subject matter of this complaint.
See
Hom v. Squire , 81 F.3d 969, 973 (10th Cir. 1996) (stating abuse of discretion
standard).
Petitioner further contends that the district court erred in dismissing his
claim against the State of Colorado for failing to hear his habeas corpus petition.
The State of Colorado is not a person subject to suit pursuant to 1983.
Will v. Michigan Dept of State Police
See
petitioner requests, he fails to show that he has exhausted his state remedies
concerning this claim in a manner sufficient to obtain habeas corpus relief.
The judgment of the United States District Court for the District of
Colorado is AFFIRMED.
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