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MARCUS A. CARTER,
Plaintiff-Appellant,
v.
FLORA PADILLA, et al.,
Defendants-Appellees.
No. 02-2196
54 Fed. Appx. 292
December 18, 2002, Filed
NOTICE: RULES OF THE TENTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
After
examining the briefs and the 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)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
This is a
pro se state prisoner 42 U.S.C. § 1983 civil rights appeal. Mr. Carter claims
that his Eighth Amendment right to be free from cruel and unusual punishment
was violated because Appellees were deliberately indifferent in failing to
protect him from attack by other inmates at the Central New Mexico Correctional Facility. Prior to his transfer
to CNMCF, Appellant had been assaulted by inmates at the Guadalupe County
Correctional Facility. Appellant states that he had been in the Aryan
Brotherhood but was beaten by the gang when they discovered that he was in
prison for sexual offenses. The magistrate judge recommended that Mr. Carter's
motion to amend the complaint be denied and summary judgment be granted. After
reviewing Mr. Carter's timely written objections, the district court adopted
the magistrate judge's recommended disposition and dismissed the action with prejudice.
Mr. Carter appeals to this court. n1
We agree
that Appellant has not demonstrated that Appellees exhibited deliberate
indifference to his safety as required by the Eighth Amendment.
A prison official's failure to prevent harm
"violates the Eighth Amendment only when two requirements are met."
Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d. 811
(1994). First, the prison
official's act or omission must be "objectively, sufficiently
serious" and "result in the denial of the minimal civilized measure
of life's necessities. . . . The inmate must show that he is incarcerated under
conditions posing a substantial risk of serious harm." Id. (quotation
marks and citations omitted). Second, the "prison official must
[*294] have a sufficiently culpable
state of mind," in this case "deliberate indifference to inmate
health or safety." Id. (quotation marks omitted). Deliberate
indifference requires actual knowledge of the risk to inmate safety. See id. at 837, 114 S. Ct. 1970.
Curley v. Perry, 246 F.3d
1278, 1282 (10th Cir.), cert. denied, 534 U.S. 922, 122 S. Ct. 274, 151 L. Ed.
2d 201 (2001).
Appellant
has been in administrative segregation at his own request during his entire
stay at CNMCF. By placing Appellant in administrative segregation, prison
officials demonstrated some concern for his safety. Id. Additionally,
Appellant's attacker was in restraints and was being escorted by a correctional
officer at the time of the assault. "Even if it is negligent of [the
prison officials] not to take further protective actions, it cannot be said
that they have shown deliberate indifference." Id.
After a thorough review of the briefs and the record, and for
substantially the same reasons set forth in the magistrate judge's disposition
adopted by the district court in its June 25, 2002, Order, we hold that no
relief is available to Mr. Carter pursuant to § 1983.
The decision of the trial court is AFFIRMED. Appellant's motion
for leave to proceed without prepayment of the appellate filing fee is GRANTED.
Appellant must continue making partial payments on court fees and costs
previously assessed until such have been paid in full.
Entered for the Court
Monroe G. McKay
Circuit Judge
FOOTNOTES:
* 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.
n1 We have jurisdiction because Appellant's notice of appeal is
dated within the thirty days to file an appeal. See Fed. R. App. P. 4(c) (a pro
se prisoner's notice of appeal is deemed filed when it is delivered to prison
officials for forwarding to the district court); see also Houston v. Lack, 487
U.S. 266, 101 L. Ed. 2d 245, 108 S. Ct. 2379 (1988).