OpenJurist

47 F3d 1178 Gallegos v. Roybal

47 F.3d 1178

Ricky GALLEGOS, Plaintiff-Appellant,
v.
Rudy ROYBAL, Officer of Portales Police Department; Fred
Hamner, Sgt. of Portales Police Department; Roosevelt
County, Detention Center; Bob Dodgen, Sheriff; Danny
Saddler; James Calley; Virginia Carter, Defendants-Appellees.

No. 94-2102.
United States Court of Appeals,
Tenth Circuit.

Feb. 22, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.

ORDER AND JUDGMENT1

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.2

1

Plaintiff Ricky Gallegos, appearing pro se and in forma pauperis, appeals the district court's order dismissing his 42 U.S.C. Sec. 1983 action as frivolous pursuant to 28 U.S.C. Sec. 1915(d). We have jurisdiction under 28 U.S.C. Sec. 1291.

2

In his amended complaint filed September 15, 1992, Plaintiff sought compensatory damages totaling $126,000,000 from Defendants for alleged cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. As factual support, Plaintiff alleged that Defendants deprived him of bedding material, showers, medication, legal materials, and access to his attorney during an eight-day period between October 3rd and 10th, 1991. The district court ordered that Defendants submit a report pursuant to Martinez v. Aaron, 570 F.2d 317, 319 (10th Cir.1978).

3

After reviewing the pleadings, including the Martinez report, the district court concluded that the general allegations set forth by Plaintiff and the factual allegations supporting his claim were clearly baseless. Thus, the district court sua sponte dismissed Plaintiff's complaint as frivolous under 28 U.S.C.1915(d). This appeal followed.

4

On appeal, Plaintiff asserts that the district court erred by dismissing his complaint as frivolous. Specifically, Plaintiff argues that we reverse the district court's dismissal and remand with instructions to reopen the proceedings. Additionally, Plaintiff contends that we appoint counsel to represent him.

5

We have reviewed the briefs of the parties, the pleadings, the Martinez report, the district court's order, and carefully examined the entire record before us. Based upon our review of the record, we find no reversible error and AFFIRM for substantially the same reasons as set forth below.

6

AFFIRMED.

1

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 the court's General Order filed November 29, 1993. 151 F.R.D. 470

2

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); 10th Cir. R. 34.1.9. The case therefore is ordered submitted without oral argument