Vincent McGraw v. Marshall Reed , 71 F. App'x 604 ( 2003 )


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  •                   United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 02-3159
    ___________
    Vincent McGraw,                       *
    *
    Appellant,                *
    *
    v.                              *
    * Appeal from the United States
    Marshall Reed, Warden, Cummins        * District Court for the Eastern
    Unit, Arkansas Department of          * District of Arkansas.
    Correction; Max Mobley, Deputy        *
    Director, PHP, Arkansas Department    *
    of Correction; Thomas D. Gensler,     *
    Regional Director, Correctional       *       [UNPUBLISHED]
    Medical Services; Larry Norris,       *
    Director, Arkansas Department         *
    of Correction,                        *
    *
    Appellees.                *
    ___________
    Submitted: June 5, 2003
    Filed: August 6, 2003
    ___________
    Before LOKEN, Chief Judge, McMILLIAN, and HANSEN, Circuit Judges.
    ___________
    PER CURIAM.
    Vincent McGraw appeals the district court’s1 adverse judgment following an
    evidentiary hearing in this 
    42 U.S.C. § 1983
     action in which McGraw claimed he was
    subject to retaliatory discipline and deliberate indifference to his serious medical
    needs. For reversal, McGraw argues that the hearing procedure was inconsistent with
    his constitutional right to a jury trial and the requirements of the Federal Rules of
    Civil Procedure.
    The pretrial hearing conducted in this case was consistent with our case law.
    See Johnson v. Bi-State Justice Ctr., 
    12 F.3d 133
    , 135-36 (8th Cir. 1993) (approving
    use of pretrial evidentiary hearing if consistent with plaintiff’s right to jury trial;
    standard is whether evidence presents sufficient disagreement to require submission
    to jury, or whether evidence is so one-sided that one party must prevail as matter of
    law). And contrary to McGraw’s contentions on appeal, we find that he was
    adequately apprised, through the magistrate judge’s pre-hearing orders, that he risked
    dismissal of his case if he did not present evidence to make a submissible jury case.
    Upon our de novo review of the record, we agree with the district court that
    McGraw’s evidence, viewed most favorably to him, did not support a finding of
    direct or supervisory liability against any of the named defendants. See Farver v.
    Schwartz, 
    255 F.3d 473
    , 475 (8th Cir. 2001) (per curiam) (actionability of false,
    retaliatory disciplinary charges under § 1983); Sherrer v. Stephens, 
    50 F.3d 496
    , 497
    (8th Cir. 1994) (per curiam) (no liability for delay in medical treatment unless
    defendant ignored acute or escalating situation, or unless delay adversely affected
    prognosis); Boyd v. Knox, 
    47 F.3d 966
    , 968 (8th Cir. 1995) (no supervisory liability
    under § 1983 absent personal involvement or unless supervisor knew about
    ¹The Honorable Stephen M. Reasoner, United States District Judge for the
    Eastern District of Arkansas, adopting the report and recommendations of the
    Honorable H. David Young, United States Magistrate Judge for the Eastern District
    of Arkansas.
    -2-
    unconstitutional conduct and facilitated, approved, condoned, or turned blind eye to
    it).
    Accordingly, we affirm.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -3-