* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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. -2- After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ause is therefore ordered submitted without oral argument. Gilbert Anthony Lovato filed this pro se action und er 42 U.S.C. § 1983 alleging that defendants violated his constitutiona l rights while he was incarcerated at the Las Animas County Jail in Trini dad, Colorado. Mr Lovato, who was both a pretrial detainee and a convicted fe lon while incarcerated there, alleges that defendants violated his Eighth and Fou rteenth Amendment rights, primarily because they did not properly treat his d iabetic condition. The district court ordered preparation of a report pursuant to M artinez 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 fri volous under 42 U.S.C. § 1915(d). Mr. Lovato appeals, contending he did notreceive a copy of the Martinezreport and was therefore unable to counter it. 1 Defendants contend the certificate of mailing conta ined in the record establishes that Mr. Lovato received the report. D efendants further point out Mr.-3-

Lovato was on notice that the report was to be file d and that he would have to respond to it, that he should have been looking forit, and that he should have asked the district court to reconsider its order be cause he did not receive it. We agree. Mr. Lovato was on notice at least by the ti me he received the lower court’s ruling that the Martinez report had been filed. His failure to bring the d istrict 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 dis putes 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 con flict 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 an d neglect, and the report does not indicate otherwise. Such conduct falls far sho rt of the deliberate indifference to serious medical needs required to make out a con stitutional 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