Professional Documents
Culture Documents
August 4, 2006
Elisabeth A. Shumaker
Clerk of Court
No. 05-4289
(D.C. No. 2:97-CV-782-PGC)
(D. Utah)
Defendants-Appellees.
OR D ER AND JUDGM ENT *
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist in the
resolution of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore
ordered submitted without oral argument.
Appellant is a state prisoner, appearing pro se, who comm enced this action
in 1997, claiming that he was assaulted and injured by other inmates while
This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.
incarcerated at the Salt Lake County M etro Jail. Appellant brought this action
under 42 U.S.C. 1983, alleging that prison employees knew he would face a
substantial risk of serious harm if exposed to other inmates at the jail but
deliberately disregarded that risk, causing him to be attacked and injured.
W hen this action was first filed, the district court dismissed Appellants
com plaint for failure to exhaust administrative remedies. On appeal, we
determined that the record was insufficient to support a dismissal for failure to
exhaust and thus reversed and remanded for further proceedings. Dickey v.
Kennard, 156 F.3d 1243 (10th Cir. 1998). Following remand, Appellant was
allowed to file an amended complaint. The district court then directed the named
Appellees to file a M artinez report addressing whether Appellant had exhausted
all administrative remedies. Appellees filed a M artinez report, which was
erroneously docketed as a M otion for Summary Judgment. Appellant did not
respond to the M artinez report, but instead filed a series of unsupported motions,
including motions for injunctive relief. The district court ordered additional
briefing from both parties, to which Appellant did not respond. On February 19,
2003, the district court again dismissed all but one of Appellants claims, and
granted summary judgment to the Appellees on the only exhausted claim.
Appellant again appealed to this court and we again reversed, concluding
that the award of summary judgment on the one exhausted claim was improper
because Appellees never filed an actual summary judgment motion and
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partial payments and order immediate payment of the unpaid balance due on his
filing fee.
M onroe G. M cKay
Circuit Judge
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