Bacon v. Van Der Veur , 71 F. App'x 19 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 22 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL A. BACON,
Plaintiff-Appellant,
v. No. 02-4194
(D.C. No. 2:95-CV-997-ST)
PAUL MCGARRY, LCSW, Central (D. Utah)
Utah Correctional Facility,
individually; MARK ACKERMAN,
Officer, Central Utah Correctional
Facility, individually; KELLY
SONDROP, LCSW, Central Utah
Correctional Facility, individually;
DALE CHRISTENSEN, Sargeant,
Central Utah Correctional Facility,
individually; KEVIN WESTOVER,
Lieutenant, Central Utah Correctional
Facility, individually,
Defendants-Appellees,
and
FRED VAN DER VEUR, Warden;
J. TERRY BARTLETT, DIO;
ROBERT JONES, Doctor; PAUL D.
LYMAN, Mayor, Sevier, Richfield;
MEL COULTER, Lieutenant, Central
Utah Correctional Facility,
individually; PARM PATRICK,
Officer, Central Utah Correctional
Facility, individually; MARK
BINKERHOFF, Officer, Central Utah
Correctional Facility, individually,
Defendants.
ORDER AND JUDGMENT *
Before KELLY , ANDERSON , and O’BRIEN , Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff Michael A. Bacon, proceeding pro se, appeals from an order of the
district court granting defendants’ motion for summary judgment in this case
brought pursuant to 42 U.S.C. § 1983. We affirm.
Mr. Bacon brought this action alleging violations of his constitutional
rights while he was incarcerated at the Central Utah Correctional Facility. He
alleged that defendants committed these violations when he was suicidal. The
district court dismissed some of the defendants and claims on the basis that they
*
This order and judgment is not binding precedent, except under the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.
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were duplicative of claims brought in other pending actions against the
defendants. The court ordered the remaining defendants, Kelly Sondrop,
a clinical social worker at the prison, and Kevin Westover and Mark Ackerman,
correctional officers, to file a Martinez 1 report addressing plaintiff’s remaining
contentions that defendants violated (1) his Eighth Amendment rights by
permitting him to possess and swallow razor blades, and by forcing him to suffer
inhumane conditions while he was restrained and while he was in the strip cell,
(2) his constitutional right of free exercise of religion by denying him religious
books and access to clergy, and (3) his constitutional right of access to the courts
by not permitting him to send or receive legal mail from the court.
Defendants filed the report and moved that the report be treated as a motion
for summary judgment. The magistrate judge prepared a report in which he
recommended that defendants’ motion be granted as Mr. Bacon had failed to show
that defendants (a) were deliberately indifferent to his serious medical needs,
(b) had violated his privacy rights, or (c) had violated his right to access to the
courts or had personally denied him his right to religious materials and visitors.
On appeal, Mr. Bacon argues that (1) defendants Christensen and McGarry
should not have been dismissed, (2) his response to the Martinez report was
timely, (3) defendants used false and conflicting testimony in the Martinez report
1
Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978) .
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and other filings, (4) defendant Westover did not follow prison regulations while
Mr. Bacon was in the strip cell, (5) he has a constitutional right to refuse
medication, (6) defendant Ackerman did violate his Eighth Amendment rights,
and (7) the Religious Freedom Reformation Act should apply because he filed his
case prior to the Supreme Court declaring it unconstitutional. Mr. Bacon asks
that this court enter a default judgment against defendants Westover and
Christensen.
We review the district court’s grant of summary judgment
de novo , applying the same legal standard used by the district court.
Summary judgment is appropriate if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law. When applying this standard, we view the evidence
and draw reasonable inferences therefrom in the light most favorable
to the nonmoving party.
Burns v. Bd. of County Comm’rs , 330 F.3d 1275, 1280-81 (10th Cir. 2003)
(quotations and citations omitted).
Defendants point out that Mr. Bacon failed to raise any of the issues he
argues here in his response to the magistrate judge’s report and recommendation.
We agree that Mr. Bacon is precluded from appealing his issues under this
circuit’s firm waiver rule, which holds that a party’s failure to raise objections to
the magistrate judge’s report and recommendation bars the party from arguing
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those issues on appeal unless the ends of justice so require. See Talley v. Hesse ,
91 F.3d 1411,1412-13 (10th Cir. 1996).
Our review of the record and Mr. Bacon’s arguments on appeal shows that
the record does not support the ends-of-justice-exception as the arguments are
without merit. The judgment of the United States District Court for the District
of Utah is AFFIRMED for substantially the reasons stated in the magistrate
judge’s report and recommendation of May 14, 2002, as adopted by the district
court in its order of August 12, 2002. Plaintiff’s motion for leave to proceed on
appeal without prepayment of costs and fees is granted. Mr. Bacon is reminded
that he remains obligated to make partial payments as provided in 28 U.S.C.
§ 1915(b)(1). The mandate shall issue forthwith.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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