Carter v. Diesslin, (10th Cir. 2000)

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UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

MYRON RAY CARTER,

Plaintiff-Appellant,

v.

WARREN T. DIESSLIN; JOHN

STARK; JON JOHNSON; WILLIAM

BRUNELL; WARREN LEONARD;

MARY STOUT; PATRICIA L.

MCCARTHY; KENT JOHNSON;

GARY CROWDER; MARCUS

WARD; FRANK M. SMITH;

WILLIAM TURNER; TERI REED;

SUSAN MILLER; FAIRE FEAZ,

"John Does" and other unnamed and

unknown agents of the Buena Vista

Correctional Facility, or successors in

office, individually and in their

official capacities,

Defendants-Appellees.

No.
name="1">99-1118

(D.C. No. 93-D-2247)

(D. Colo.)

ORDER AND JUDGMENT
name="txt*">(*)

Before BALDOCK, BRISCOE, and

LUCERO, Circuit Judges.

Plaintiff Myron R. Carter appeals from the district court's judgment

granting summary judgment to defendants on his civil rights claims filed pursuant

to 42 U.S.C. § 1983.(1) He has

also moved for leave to proceed without

prepayment of fees; that motion is granted.
name="txt2a">(2)

On appeal, plaintiff contends that

the district court erred in granting summary judgment to defendants because his

complaint and affidavit allege sufficient specific facts supporting his claims of

denial of access to the courts, wrongful and retaliatory disciplinary hearings,

failure to protect him from harm, racial harassment and retaliation, wrongful

change of cell assignment, wrongful termination, wrongful withholding of funds,

and civil conspiracy. He also contends that the district court erred in disallowing

his discovery requests based on defendants' qualified immunity defense. Finally,

he asserts error in the court's denial of his motion to amend his complaint to add

new claims and defendants.(3)

We review the district court's grant of summary judgment de novo,

applying the same standards as the district court pursuant to Fed. R. Civ. P. 56(c).

See Dodge v. Cotter Corp., 203 F.3d 1190, 1201 (10th Cir. 2000). The district

court's rulings regarding plaintiff's discovery requests and his motion to amend

his complaint are reviewed only for abuse of discretion. See Cole v. Ruidoso

Mun. Schs., 43 F.3d 1373, 1386 (10th Cir. 1994); Grossman v. Novell, Inc.,

120

F.3d 1112, 1126 (10th Cir. 1997).

After careful consideration of plaintiff's arguments together with

defendants' response, the record on appeal,
name="txt4a">(4) and the applicable law, we conclude

that the district court correctly decided this case. Therefore, for substantially the

same reasons as set forth in the magistrate judge's recommendation dated

January 13, 1998, and the district court's order dated February 12, 1999, the

judgment of the United States District Court for the District of Colorado is

AFFIRMED.

Entered for the Court

Bobby R. Baldock

Circuit Judge

FOOTNOTES

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*. 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.

1. 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.

2. Plaintiff has consented to

disbursement of partial payments of the filing

fees from his prison account. He must pay $105.00 to the clerk of the district

court. His custodian shall, within thirty days of the date of this order, deduct and

pay to the clerk of the United States District Court for the District of Colorado an

amount equal to twenty percent of the greater of--

A) the average monthly deposits to his account, or

B) the average monthly balance in his account for

the six-month period immediately preceding filing

of the notice of appeal in this case.

In either event, plaintiff's custodian shall forward payments from

plaintiff's account equal to twenty percent of the preceding month's income each

time the account exceeds $10.00 until the filing fees are paid in full. The clerk

of this court is directed to serve a copy of this order on plaintiff's custodian

forthwith.

3. In connection with his motion to

amend before the district court, plaintiff

sought to add an additional plaintiff, Ms. Betty A. James, to his suit. Although

the district court denied his request, Ms. James' name was included in plaintiff's

notice of appeal. Upon this court's order to show cause, Ms. James has filed a

"motion to dismiss notice of appeal," essentially asking this court to dismiss her

from the case. The motion is granted; Ms. James is dismissed as a nonparty.

4. Defendants suggest that we dismiss

this appeal because plaintiff's appendix

is deficient. See Appellees' Br. at 6. In turn, plaintiff asserts that we should

strike defendants' brief as untimely filed. See Reply Br. at 3. There is no basis

for plaintiff's assertion; defendants' brief was timely filed as scheduled on our

docket. We decline defendants' invitation to dismiss on technical grounds

because their supplemental appendix provides the necessary documents. See

O'Dell v. Shalala, 44 F.3d 855, 857 n.2 (10th Cir. 1994) (stating that court chose

to address case on the merits where, although record was inadequate, excerpts

were sufficient to support the agency's determination).

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