875 F2d 862 Corbett v. Gardner

875 F.2d 862

Mark L. CORBETT, also known as Jerry McCarthy Plaintiffs-Appellants
Mike GARDNER, Sheriff; Tim Pippim, Nurse; Samuel Breeding,
Doctor, Defendants-Appellees, (89-5009)
Mike Gardner, Sheriff; Grimes, Chief; Hawkins, Captain;
Jerry Pratt, Lt.; Nick Cody; Jasper Baker, Sergeant,
Jailer; King, Jailer; Bowlin, Jailer; Stuntz, Jailer;
Watterson, Jailer; Thurlough, Jailer, Defendants-Appellees.

Nos. 89-5009, 89-5134.

United States Court of Appeals, Sixth Circuit.

May 31, 1989.

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

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Before DAVID A. NELSON and BOGGS, Circuit Judges, and ANN ALDRICH, District Judge.*



Mark L. Corbett moves for in forma pauperis status and for counsel on appeal from the district court's orders in these two prisoner's civil rights cases. 42 U.S.C. Sec. 1983. The appeals have been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).


The district court granted in forma pauperis status to Corbett. As a result, he automatically receives pauper status on appeal. Fed.R.App.P. 24(a). Therefore, we will deny the motion for in forma pauperis status as unnecessary.


Corbett is a prisoner at the Sullivan County jail in Blountville, Tennessee. In Case No. 89-5009, the defendants are the county sheriff, the jail's nurse, and the jail's doctor. In his complaint, Corbett alleged that the defendants improperly gave his medicine to two other prisoners. The prisoners overdosed and required medical treatment. The district court dismissed this case sua sponte because Corbett did not allege any injury to himself and lacked standing to raise the injury to the other inmates. Therefore, Corbett did not state a claim under Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). We conclude that the district court's reasoning is correct, and we will affirm the district court's dismissal.


In Case No. 89-5134, the district court consolidated two complaints raising three claims. The first claim concerned a photograph taken by jail officials of Corbett's genitals. (The prosecutor in a criminal case wanted the photograph for identification purposes.) The second and third claims concerned alleged assaults by jail officials upon Corbett. The district court conducted a bench trial on these claims and entered judgment for the defendants.


On appeal, Corbett challenged the district court's refusal to issue writs of habeas corpus ad testificandum for two of his witnesses. The issuance of a writ of habeas corpus ad testificandum is discretionary. Beard v. Mitchell, 604 F.2d 485, 504 (7th Cir.1979). Here the district court issued writs to bring two prisoners to court but refused to issue writs for two other prisoners. In his complaint, Corbett admitted that no other prisoners actually saw the alleged assaults. Given these facts, the district court did not abuse its discretion when it limited the use of writs in this case.


Corbett also challenges the factual findings of the district court. Findings of fact by the district court cannot be set aside unless they are clearly erroneous. Fed.R.Civ.P. 52(a). A finding of fact is clearly erroneous when the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985). We have examined the transcript of the trial in this case, and we conclude that the district court's findings are not clearly erroneous.

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The motions for in forma pauperis status and for counsel are denied. The orders of the district court in these two cases are affirmed under Rule 9(b)(5), Rules of the Sixth Circuit, because the issues are not substantial and do not require oral argument.


The Honorable Ann Aldrich, U.S. District Judge for the Northern District of Ohio, sitting by designation