Rosario-Montalvo v. Scott, (10th Cir. 1999)

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UNITED

STATES COURT OF APPEALS

TENTH CIRCUIT

ALBERTO ROSARIO-MONTALVO,

Plaintiff - Appellant,

vs.



WILLIE SCOTT, Warden,

Defendant - Appellee.

No. 98-3123

(D.C. No. 94-3242-RDR)

(D. Kan.)

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

Before PORFILIO,
name="9">KELLY, and HENRY, Circuit

Judges.(**)

Mr. Rosario-Montalvo, a federal prisoner appearing pro se, appeals from

the district court's granting of Defendant's summary judgment motion and

dismissal of his Bivens action. Mr. Rosario-Montalvo claims that prison officials

were deliberately indifferent to his serious medical needs, see Estelle v.

Gamble,

429 U.S. 97 , 106 (1976), arising after the use of excessive force, see Hudson v.

McMillian, 503 U.S. 1, 7 (1992). He also claims that prison officials did not

accord him adequate due process in connection with the incident resulting in

excessive force. See Superintendent v. Hill, 472 U.S. 445, 454-55 (1985);

Wolff

v. McDonnell, 418 U.S. 539, 566-67 (1974). On appeal, Defendant raises the

purely conclusory allegations that the Bureau of Prisons has interfered with his

ability to pursue his claims (by frequent transfers) and that the district court was

biased in favor of the government because the Defendant is represented by a

prosecuting entity.

Liberally construing Mr. Rosario-Montalvo's pro se pleadings, see Haines

v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam), and reviewing the district

court's grant of summary judgment de novo, see Barney v. Pulsipher, 143 F.3d

1299, 1306 (10th Cir. 1998), we affirm because Mr. Rosario-Montalvo has failed

to show an affirmative link between the actions complained of and any conduct

of the Defendant warden. See Green v. Branson, 108 F.3d 1296, 1302-03 (10th

Cir. 1997). Nor has he shown any conduct of the Defendant warden pertaining to

his medical care that would satisfy the subjective component of wantonness. See

Wilson v. Seiter, 501 U.S. 294 , 303 (1991). Finally, the summary judgment

record contains uncontroverted evidence of adequate procedure and some

evidence to support discipline. All pending motions are denied and Mr. Rosario-Montalvo is

reminded of his obligation to pay the filing fee assessed on July 28,

1998.

AFFIRMED.

Entered for the Court

Paul J. Kelly, Jr.

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. This 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.

**. After examining the briefs and the

appellate record, this three-judge

panel has determined unanimously that oral argument would not be of material

assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th

Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

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