Terry Proctor v. Max Mobley , 95 F. App'x 192 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2547
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Terry Proctor, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
L. Engstrom; Grandy, Ms.; Charles * Eastern District of Arkansas.
McIntosh, *
* [UNPUBLISHED]
Defendants, *
*
Max Mobley, *
*
Appellee, *
*
Miller, Nurse; Robert Clark, *
*
Defendants, *
*
Michael Odum, originally sued as *
M. Odom, *
*
Appellee, *
*
Michael Deloney; L. Mays, *
*
Defendants, *
*
Michael McGruder, Sgt., (originally *
sued as McGruder); Acie Smith; *
Michael Barger, Lt., (originally sued *
as Bargess), *
*
Appellees, *
*
Richard Wimberly; Merlin Fitzpatrick; *
Reeves, Ms., CO-I; Camp, Ms., CO-I; *
Larry Norris, Director, ADC; Greg *
Harmon, *
*
Defendants. *
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Submitted: April 5, 2004
Filed: April 16, 2004
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Before MELLOY, HANSEN, and COLLOTON, Circuit Judges.
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PER CURIAM.
Arkansas inmate Terry Proctor appeals from the district court’s1 adverse entry
of judgment following a bench trial in his 42 U.S.C. § 1983 action in which he
alleged that Arkansas Department of Correction (ADC) correctional officers Michael
Odum, Michael McGruder, Michael Barger, and Acie Smith used excessive force
against him and, along with Max Mobley, denied him adequate medical care, in
violation of his constitutional rights.2 For reversal, Proctor argues the testimony at
1
The Honorable Susan Webber Wright, Chief Judge, United States District
Court for the Eastern District of Arkansas.
2
Proctor also named other ADC employees, but in his appellate brief he does
not challenge the propriety of their dismissals. See Harris v. Folk Constr. Co., 138
F.3d 365, 366-67 n.1 (8th Cir. 1998) (by failing to assert grounds for reversal of
certain orders in brief, appellant is deemed to have waived issues on appeal).
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trial established that defendants used excessive force when they beat him in his cell
and at the infirmary, and that defendants had been deliberately indifferent to his
serious medical needs. He also contends that his trial counsel was ineffective, and
that the district judge was biased against him. We affirm.
Initially, we conclude the district court properly granted Mobley judgment as
a matter of law because Proctor did not present evidence of Mobley’s personal
involvement in the events at issue. See Tlamka v. Serrell, 244 F.3d 628, 635 (8th Cir.
2001); Hawkins v. City of Farmington, 189 F.3d 695, 700-01 (8th Cir. 1999).
We review the district court’s bench-trial factual findings for clear error and
the court’s conclusions of law de novo. See Estate of Davis v. Delo, 115 F.3d 1388,
1393-94 (8th Cir. 1997). The district court credited trial testimony that Sergeant
Smith struck Proctor once in a reflex action with a heavy trap-door key after Proctor
had refused several orders to withdraw his arm from the trap door in his cell, had
grabbed Smith by his shirt through the trap door, and was attempting to pull Smith
down and would not let him go; that no further force was used by Smith or the other
ADC officers; and that Proctor did not suffer serious resulting injuries. Accordingly,
we conclude the district court did not err in finding against Proctor on his excessive-
force claim. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992) (prisoner required to
demonstrate that officers used force maliciously and sadistically to cause harm, rather
than in good faith effort to maintain or restore discipline); Whitley v. Albers, 475
U.S. 312, 321 (1986) (relevant factors include need for force, relationship between
amount of force needed and used, and extent of injuries); Anderson v. City of
Bessemer City, 470 U.S. 564, 574-75 (1985) (as factfinder, district court is entitled
to make credibility determinations). Similarly, we conclude the court did not err in
finding against Proctor on his medical-care claim because the officers took Proctor
to the infirmary immediately after the altercation, at which time the nurse examined
him and Proctor stated he was not injured, and Proctor cancelled his subsequent
medical appointment. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“In order to
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state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful
to evidence deliberate indifference to serious medical needs.”).
Finally, Proctor’s ineffective-assistance claim is not a basis to overturn the
judgment, see Glick v. Henderson, 855 F.2d 536, 541 (8th Cir. 1988), and his claim
of judicial bias is unsupported, see 28 U.S.C. § 144 (party seeking recusal must file
timely affidavit attesting personal bias or prejudice); cf. Bannister v. Delo, 100 F.3d
610, 614 (8th Cir. 1996) (district judges are presumed impartial and movant bears
substantial burden of proving otherwise), cert. denied, 521 U.S. 1126 (1997); In re
Mann, 229 F.3d 657, 658 (7th Cir. 2000) (district judge is not disqualified merely
because litigant files complaint alleging judicial misconduct; if that were rule,
litigants could manipulate system by filing frivolous complaints in hopes of being
assigned judge more sympathetic to their cause).
Accordingly, we affirm the judgment of the district court.
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