* This order and judgment is not binding precedent, e xcept under the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

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 23 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

GREGORIO MESA,

Plaintiff-Appellant,

v. STATE OF NEW MEXICO ex rel.; FRED GIFFORD, individually and in his official capacity as Magistrate of Luna County; NEW MEXICO STATE POLICE, an agency of the State of New Mexico; EDWARD APODACA, individually and in his official capacity as a patrolman for the New Mexico State Police, and Sheriff of Luna County in his official capacity; JIM CLAY, Sheriff of Luna County, individually and in his official capacity; COUNTY OF LUNA,

Defendants-Appellees. No. 96-2171 (D.C. No. CIV-94-862-PJK) (D. N.M.)

ORDER AND JUDGMENT *

Before ANDERSON, LOGAN, and EBEL, Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. SeeFed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Plaintiff-appellant Gregorio Mesa appeals the distr ict court’s grant of summary judgment to defendants on his civil rights complaint. Plaintiff instituted this action pursuant to 42 U.S.C. §§ 1983, 1985(3), and the New Mexico Tort Claims Act, N.M. Stat. Ann. § 41-4-1 to -27, seekin g damages resulting from his arrest for contempt of court. We exercise jurisdic tion under 28 U.S.C. § 1291, and we affirm. On January 19, 1993, plaintiff appeared before defe ndant Fred Gifford, a New Mexico magistrate judge, on a charge of speedin g. Plaintiff took exception to the magistrate judge’s finding of guilty and requested an immediate appeal. The magistrate judge required that plaintiff sign an “Agreement to Pay the Fine (And Court Costs)” form, and when plaintiff refused , the magistrate judge found him in contempt and ordered him taken into custody. Pursuant to the magistrate judge’s verbal order, defendant New Mexico Police O fficer Edward Apodoca arrested plaintiff. In his complaint, plaintiff as serted that Officer Apodoca used excessive force in executing the arrest order. Pla intiff was held in the Luna County jail for approximately two to three hours be fore being released. Plaintiff claimed that Magistrate Judge Gifford hel d him in contempt without benefit of hearing and was responsible for the illegal actions of Officer-3-

Apodoca. He claimed that defendants Luna County an d Jim Clay, Sheriff of Luna County, failed to see to his medical needs while he was incarcerated. Finally, he claimed damages against Officer Apodoca, individual ly and in his official capacity, for use of excessive force, false arrest, imprisonment, assault and battery, violation of due process, and malicious pr osecution. In granting summary judgment, the district court de termined that plaintiff’s claims against the State of New Mexico, the New Mex ico State Police, and Officer Edward Apodoca, in his official capacity, w ere barred by Eleventh Amendment immunity. Because plaintiff’s § 1985(3) claim was against only Magistrate Judge Gifford, and because Magistrate Ju dge Gifford had been dismissed from the suit by stipulation of the parti es, the court did not further address that claim. The court found that plaintiff had not stated a basis for liability under § 1983 against the governmental ent ities, including Luna County, and that respondeat superior was not a proper basis for liability. The district court determined that although OfficerApodoca’s execution of the arrest order was protected by absolute immunity , this immunity did not extend to the manner in which the arrest was undertaken. The court found that a heated exchange took place between plaintiff and the magis trate judge following the verbal arrest order. According to Officer Apodoca’ s deposition, plaintiff wedged himself into a corner in the courtroom. Plaintiff claimed that Officer Apodoca-4-

“tightly handcuffed Plaintiff, cutting off Plaintif f’s circulation, and shoved, pushed and dragged Plaintiff to jail, without any r egard for his advanced age or his serious medical condition.” R. Vol. I, tab 19 at 5. Plaintiff sought no medical attention as a result of the arrest, and admitted i n deposition that most of the damage he suffered was as a result of the mental an guish of being arrested. Concluding that plaintiff suffered “minimal injury, if any,” as a result of Officer Apodoca’s actions, id. , tab 42 at 4, the court granted summary judgment o n the excessive force claim, finding that Officer Apodoca ’s actions were “objectively reasonable” under the circumstances. See Graham v. Connor , 490 U.S. 386, 396-97 (1989) (a Fourth Amendment claim of excessiv e force in the course of making an arrest is properly analyzed as whether th e officer’s actions were “‘objectively reasonable’ in light of the facts andcircumstances;” “[n]ot every push or shove . . . violates the Fourth Amendment”) (quotations omitted). Finally, plaintiff claimed that he had a heart cond ition and was recovering from a recent colostomy at the time of his arrest. He asserted that the Luna County Sheriff, Jim Clay, and Luna County failed to provide him with medical attention during his incarceration. He testified i n deposition, however, that he did not require immediate medical attention, but was co ncerned about potential medical problems if he continued to be incarcerated . The court concluded, therefore, that he had failed to state a claim of d eliberate indifference to serious-5-

medical needs. SeeEstelle v. Gamble , 429 U.S. 97, 106 (1976) (holding that “[i]n order to state a cognizable [Eighth Amendment ] claim, a prisoner must allege acts or omissions sufficiently harmful to ev idence deliberate indifference to serious medical needs”). Upon resolution of plaintiff’s federal claims, the district court declined to exercise jurisdiction over plaintiff’s state law cl aims, dismissing those claims without prejudice. SeeGraham v. Independent Sch. Dist. No. I-89 , 22 F.3d 991, 993 n.3 (10th Cir. 1994) (district court’s dismissa l of state law claims without prejudice does not bar litigant from refiling in st ate court). On appeal, plaintiff, appearing pro se, contends th at (1) he was inadequately represented by his retained counsel, ( 2) the district court erred in granting summary judgment in light of counsel’s ina dequate representation, (3) certain of the defendants committed perjury, (4 ) the district court failed to consider a witness’s deposition testimony, (5) the district court improperly applied the law, and (6) plaintiff’s counsel stipul ated to the dismissal of defendant Fred Gifford without plaintiff’s permissi on to do so. Plaintiff’s assertion that his counsel was ineffect ive, thus requiring remand of the case, is without merit. The Sixth Amendmentright to effective counsel does not extend to civil cases. See MacCuish v. United States , 844 F.2d 733, 735-36 (10th Cir. 1988) (holding there is no consti tutional right to counsel in a-6-

civil action, and noting that a malpractice action is the appropriate remedy for claims of inadequate representation). Plaintiff’s assertion that the district court improperly applied the law is without development or support of authority. While plaintiff, as a pro se litigant, is entitled to a more liberal construction of his p leadings, seeHaines v. Kerner , 404 U.S. 519, 520-21 (1972), “the court will not co nstruct arguments or theories for the plaintiff in the absence of any discussion of those issues,” Drake v. City of Fort Collins , 927 F.2d 1156, 1159 (10th Cir. 1991). The remain ing issues raised by plaintiff on appeal were not presented to the district court, and will not be considered on appeal. See Walker v. Mather (In re Walker) , 959 F.2d 894, 896 (10th Cir. 1992) (noting that appellate courts gene rally will not consider an issue on appeal not raised below). As plaintiff has not expressly appealed the distric t court’s findings, we will accept them as undisputed. See Hein v. TechAmerica Group, Inc. , 17 F.3d 1278, 1279 (10th Cir. 1994). Therefore, plaintiff’s moti on requesting remand is DENIED, and the judgment of the United States Distr ict Court for the District of New Mexico is AFFIRMED.

Entered for the Court David M. Ebel Circuit Judge