74 F3d 1249 Oliver v. Doe a

74 F.3d 1249

Curtis OLIVER, Plaintiff-Appellant,
v.
John DOE, Warden; A. Kellman, (D.O.), Defendants-Appellees.

No. 95-1383.
(D.C.No. 95-S-1803)

United States Court of Appeals, Tenth Circuit.

Jan. 9, 1996.

NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral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

ORDER AND JUDGMENT1

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 cause is therefore ordered submitted without oral argument.

2

This is an appeal from an order dismissing plaintiff's 42 U.S.C.1983 action. Taking the facts alleged in the complaint as true, the district court determined the claims were based upon an allegation of simple negligence which did not constitute cruel or unusual punishment under the Eighth Amendment. Plaintiff also asserted unspecified violations of rights protected by the Fifth, Eleventh, and Fourteenth Amendments arising out of the same operative facts. We agree with the district court's conclusion these allegations were meritless. We AFFIRM the judgment of the district court for the reasons stated in its order of July 31, 1995.

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This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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 10th Cir. R. 36.3