*This order and judgment is not binding precedent, except under the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 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS

Filed 10/28/96

TENTH CIRCUIT

GILBERT ANTHONY LOVATO,

Plaintiff-Appellant,

v.

LOU GIRODO, Sheriff, Las Animas

County Sheriff’s Department; 

RICHARD TRUJILLO, WILLIAM

MUSCLEWHITE, STANLEY BIBER,

PHIL VALDEZ, RON MARTINEZ,

RICHARD ZAMORA, DANIEL

GALLEGOS, WALT LAVATO, TOM

LUCAS, MANNY GUTIERREZ, ROB

PEARSON, 

Defendants-Appellees.

No. 96-1122

(D.C. No. 95-S-2393)

(Colorado)

ORDER AND JUDGMENT*

Before SEYMOUR, Chief Judge, KELLY and LUCERO, Circuit Judges.
1

 The district court granted Mr. Lovato’s motion to proceed in forma

pauperis on appeal.

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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.

Gilbert Anthony Lovato filed this pro se action under 42 U.S.C. § 1983

alleging that defendants violated his constitutional rights while he was

incarcerated at the Las Animas County Jail in Trinidad, Colorado. Mr Lovato,

who was both a pretrial detainee and a convicted felon while incarcerated there,

alleges that defendants violated his Eighth and Fourteenth Amendment rights,

primarily because they did not properly treat his diabetic condition. The district

court ordered preparation of a report pursuant to Martinez v. Aaron, 570 F.2d 317

(10th Cir. 1978), and gave Mr. Lovato an opportunity to respond to it. Mr.

Lovato did not do so and the district court relied on the uncontradicted material in

the report to dismiss Mr. Lovato’s complaint as frivolous under 42 U.S.C. §

1915(d). Mr. Lovato appeals, contending he did not receive a copy of the

Martinez report and was therefore unable to counter it.1

Defendants contend the certificate of mailing contained in the record

establishes that Mr. Lovato received the report. Defendants further point out Mr.
-3-

Lovato was on notice that the report was to be filed and that he would have to

respond to it, that he should have been looking for it, and that he should have

asked the district court to reconsider its order because he did not receive it. We

agree. Mr. Lovato was on notice at least by the time he received the lower court’s

ruling that the Martinez report had been filed. His failure to bring the district

court’s attention to his alleged failure to receive it and to request reconsideration

on that ground precludes our consideration of that assertion here. 

The district court correctly construed Mr. Lovato’s pro se complaint

liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), and

recognized that a court cannot resolve material disputes of fact by accepting a

Martinez report’s fact findings when they conflict with the pleadings, see id. at

1109. The court stated that the report did not conflict with Mr. Lovato’s

allegations, but rather contained additional facts which clarified them. Finding no

conflict, the court relied on the report to dismiss Mr. Lovato’s complaint as

frivolous. We have carefully reviewed the record and the authorities the court

relied upon in concluding that the action should be dismissed as frivolous, and we

affirm for the reasons given by the district court. Mr. Lovato’s allegations assert

only that defendants were acting out of laziness and neglect, and the report does

not indicate otherwise. Such conduct falls far short of the deliberate indifference

to serious medical needs required to make out a constitutional violation in these
-4-

circumstances. See Estelle v. Gamble, 429 U.S. 97 (1976). We AFFIRM the

judgment of the district court. 

The mandate shall issue forthwith.

ENTERED FOR THE COURT

Stephanie K. Seymour

Chief Judge