57 F3d 1080 Martinez v. O Gunter

Paul Louis MARTINEZ, Plaintiff-Appellant,
Frank O. GUNTER, sued in individual and in official
capacity; Robert Furlong, sued in individual and in
official capacity; Richard Murray, sued in individual and
in official capacity, Defendants-Appellees.

No. 94-1493.
(D.C. No. 93-F-660)

United States Court of Appeals, Tenth Circuit.

June 20, 1995.

57 F.3d 1080
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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.

Before ANDERSON, BALDOCK, and BRORBY, Circuit Judges.


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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 is therefore ordered submitted without oral argument.


Plaintiff, appearing pro se, appeals the district court's order granting summary judgment to defendants on plaintiff's claims brought under 42 U.S.C.1983 based on deprivation of his constitutional rights during his incarceration. Plaintiff alleges his constitutional rights were violated when prison officials imposed a lockdown and conducted an investigation following a violent incident on January 28, 1993, during which a prison guard was stabbed. Until approximately March 13, 1993, following the initial three-day lockdown, prison officials imposed restrictions on unemployed inmates, including plaintiff, to improve prison security and to encourage inmates to participate in jobs and programs. As a result of those actions, plaintiff claims (1) he was denied due process because he did not have a hearing before being placed in administrative segregation or before the subsequent restrictions were imposed; (2) his ability to practice his religion was restricted; (3) his access to the law library was restricted; (4) his equal protection rights were violated because he was denied employment for two months; and (5) he was subjected to cruel and unusual punishment in his living conditions because his food was served cold from carts used to transport laundry and trash, he was required to eat while standing or sitting on the floor, his access to showers and laundry services was limited, his contact visits were discontinued, and he was not permitted access to the gym or yard for the month of February, 1993. In addition to those claimed constitutional violations, plaintiff complains that defendants failed to comply with his discovery requests, thereby precluding summary judgment.


In granting summary judgment to defendants, the district court adopted the recommendation of the magistrate judge. The district court concluded (1) legitimate penological interests in maintaining prison security outweighed any due process rights plaintiff may have had in his specific housing assignment; (2) plaintiff failed to make the required showing of cruel and unusual punishment; (3) plaintiff's First Amendment rights were not violated because he was not denied his Constitutional rights, and the restrictions were reasonably related to legitimate penological goals; (4) plaintiff's claim that he was denied equal protection in prison employment was too conclusory to state a claim, and his employment situation was resolved in accordance with prison rules; and (5) because defendants did not deprive plaintiff of any Constitutional rights, they were entitled to qualified immunity.


Plaintiff has attempted to expand his equal protection claim on appeal by alleging that minorities were assigned a disproportionate number of the lower-paying, menial kitchen jobs, and that plaintiff was denied employment because he is Hispanic. We will not consider on appeal issues or evidence not presented to the district court. Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 720-22 (10th Cir.1993).


We review de novo the district court's grant of summary judgment. Rohrbaugh v. Celotex Corp., No. 93-5277, 1995 WL 257261, at * 1 (10th Cir. May 3, 1995)(to be reported at 53 F.3d 1811). Summary judgment is appropriate where there are no genuinely disputed material facts. Fed.R.Civ.P. 56(c). Summary judgment should be granted against a nonmoving party who cannot adduce probative evidence on a claim for which he bears the burden of proof. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986).


Plaintiff claims that summary judgment should not have been granted before discovery was completed. The record reflects that defendants answered plaintiff's interrogatories, but plaintiff objected to some of the answers. Plaintiff has made no showing of how the disputed discovery has adversely affected his ability to oppose defendants' motion for summary judgment. See Jensen v. Redevelopment Agency, 998 F.2d 1550, 1555 (10th Cir.1993)("There was not even an attempt to show how such facts, if discovered, would have been useful in opposing the motion[ ] for summary judgment."). Accordingly, the district court did not abuse its discretion by entering summary judgment over plaintiff's discovery objections. See id. at 1553.


We have carefully considered plaintiff's claims brought under 42 U.S.C.1983. Based on our review of the record, the parties' briefs, and the applicable law, we affirm the entry of summary judgment in defendants' favor for substantially the reasons stated in the district court's order adopting the recommendation of the magistrate judge dated September 26, 1994.

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The judgment of the United States District Court for the District of Colorado is AFFIRMED. The mandate shall issue forthwith.


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