69 F3d 547 Bretz v. O Gunter E

69 F.3d 547

Kevin Mark BRETZ, Plaintiff-Appellant,
v.
Frank O. GUNTER, Executive Director; Mark McKinna, Warden,
Named as Mark E. McKenna; Don Hill, Captain; Lt. Workman;
Linda Bermudez, Lt.; Department of Corrections, for the
State of Colorado, Defendants-Appellees.

No. 95-1076.
(D.C.No. 92-M-1703).

United States Court of Appeals, Tenth Circuit.

Oct. 31, 1995.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument,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 TACHA, LOGAN and KELLY, Circuit Judges.

ORDER AND JUDGMENT1

LOGAN

1

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.

2

Plaintiff Kevin Mark Bretz appeals the dismissal of his 42 U.S.C.1983 action against five employees of the Colorado Department of Corrections alleging violations of his constitutional rights during a two-week lockdown.

3

Plaintiff's civil rights suit raised a number of issues concerning the lockdown--the basis for it, plaintiff's personal safety concerns, and restrictions on his access to the prison yard, chow hall, the regular or law library, his case manager, church services, showers, telephone and a clean cell. Following an evidentiary hearing, the magistrate judge recommended dismissal of all claims except those pertaining to denial of access to legal materials and religious freedom. The district court adopted this recommendation and referred the case back to the magistrate judge for further proceedings. After a pretrial order was entered, defendants filed a summary judgment motion with supporting affidavits asserting that the named defendants had no role in any denial of access to legal materials, confiscation of religious materials, or deprivation of religious freedom. The magistrate judge recommended granting the motion, and the district court agreed.

4

On appeal plaintiff asserts that the district court should not have considered defendants' summary judgment motion after the pretrial order had been entered. Also he challenges the denial of relief with respect to the religious items he claims were taken and never returned to him. We review de novo a grant of summary judgment. Applied Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990).

5

A court can entertain a motion for summary judgment at any time during a trial if it appears proper, just as a court can grant a motion to dismiss or for directed verdict when there is a failure of proof. The court is not barred from such action, as plaintiff contends, because it had previously refused to grant or did not rule on plaintiff's Fed.R.Civ.P. 65 motions for injunction.

6

Plaintiff failed, in both his response to defendants' summary judgment motion and his objections to the magistrate judge's recommendation, to show how any of the named defendants personally participated in the claimed denials of access to legal materials or the religious deprivations he asserts as constitutional violations. Instead, he claims that his discovery requests remain unanswered, that the defendants' affidavits contain false information, that his placement during lockdown restricted his attempts to use the informal grievance procedures, and that his Rule 65 motions remain undecided. None of these arguments address the threshold deficiency of plaintiff's claim which fails to tie defendants personally to the alleged constitutional deprivations. Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir.1976).

7

To state a civil rights claim against a supervisor, such as Director Gunter or Warden McKinna, a plaintiff must establish some participation or actual acquiescence in the alleged constitutional deprivation. Meade v. Grubbs, 841 F.2d 1512, 1527-28 (10th Cir.1988). We agree with the analysis contained in the magistrate judge's recommendation dated August 1, 1994, and the district court's order of December 30, 1994, granting summary judgment, and AFFIRM for substantially the reasons stated therein.

8

The mandate shall issue forthwith.

1

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