Your document has been successfully saved!

Search through millions of court cases, regulations, statutes and more...

Search for
Boolean Connector Use Result
AND Sleep AND Fall Records with both “Slip” and “Fall”
OR Lee OR Grant Records with either “Lee” or “Grant”
NOT Transaction NOT Fee Records that contain “Transaction” but exclude “Fee”
( ) (Tree OR Shrub) AND Fall Records containing “Tree” or “Shrub”, and the word “Fall”
" " "Capital Punishment" Records containing the exact phrase “Capital Punishment”
* Affirm* Records containing variations of the root word (such as “Affirmed”, “Affirming”, “Affirmation”, and etc…)
? Connect?r Records that contain single letter variations (such as “Connector” and “Connecter”)
Jurisdiction: Court of Appeals for the Tenth Circuit
Decision Date: 4/26/1991

STATES

                                                                                                                                                                                                                                                                                                                                                                                                                            FEDERAL

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        McGuinness v. Valdivia McGuinness v. Valdivia, 931 F.2d 63 (C.A.10 (N.M.), 1991)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Page 63

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        931 F.2d 63
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Unpublished Disposition
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        NOTICE: Tenth Circuit Rule 36. 3 states that unpublished opinions and orders and judgments have no precedential value and shall not be cited except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Charles McGUINNESS, Plaintiff-Appellant,
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        v.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Rudolpho VALDIVIA, Defendant-Appellee.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        No. 90-2055.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        United States Court of Appeals, Tenth Circuit.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        April 26, 1991.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Before STEPHEN H. ANDERSON, TACHA and BRORBY, Circuit Judges.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ORDER AND JUDGMENT

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                TACHA, Circuit Judge.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                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-appellant Charles McGuinness has brought this action against defendant-appellee Dr. Rudolpho Valdivia seeking recovery pursuant to 42 U.S.C. Sec. 1983. Plaintiff, a prisoner at the Western New Mexico Corrections Center, claims defendant, a doctor at that facility, subjected him to cruel and unusual punishment in violation of the eighth and fourteenth amendments by providing plaintiff with improper medical care.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The district court dismissed plaintiff's complaint on February 6, 1990. Plaintiff delivered his notice of appeal to prison officials for mailing to the district court on March 8, 1990. The notice of appeal was actually filed with the district court on March 12, 1990.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                We must first determine whether the notice of appeal was filed in a timely manner. Defendant contends the deadline for filing the notice of appeal was March 8, 1990. Because the notice was not actually filed until March 12, 1990, defendant believes this court does not have jurisdiction over this appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The Supreme Court, however, has held a notice of appeal by a pro se prisoner is filed at the time it is handed over to prison officials for mailing to the district court. See Houston v. Lack, 487 U.S. 266, 270-71 (1988). Plaintiff delivered his notice of appeal to the prison officials on March 8, 1990, thirty days after the district court entered its order. The notice of appeal was therefore filed in a timely manner and we have jurisdiction to consider this appeal.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                The district court properly dismissed plaintiff's complaint for failure to state a claim. Because petitioner is representing himself, his complaint will be construed liberally. Haines v. Kerner, 404 U.S. 519 520-21 (1972). Plaintiff's complaint alleges defendant provided him with improper treatment for warts on his testicles. A prisoner states a cognizable claim under the eighth amendment only if he alleges "acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. "Estelle v. Gamble, 429 U.S. 97 106 (1976).

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                Plaintiff's complaint does not contain these required allegations. It only states plaintiff believes defendant did not provide proper medical care. Such allegations do not support a claim under section 1983. Smart v. Villar, 547 F.2d 112 114 (10th Cir. 1976). We AFFIRM for substantially the same reasons provided by the district court. The mandate shall issue forthwith.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        ---------------

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36. 3.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        * This order and judgment has no precedential value and shall not be cited, or used by any court within the Tenth Circuit, except for purposes of establishing the doctrines of the law of the case, res judicata, or collateral estoppel. 10th Cir. R. 36. 3.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Cited By
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Negative Treatment
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Notes

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        Please, select a date range