* This order and judgment is not binding precedent, e xcept under the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

### DEC 3 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BRIAN DALE DUBUC, Plaintiff-Appellant,

v. No. 99-5107 SATAYABAMA JOHNSON, sued as: Dr. Johnson of the Tulsa County Jail; NURSE ROSE; NURSE LINDA; DOYLE EDGE, Sgt.; EARL McCLAFLIN, sued as: Corporal McLoughlon; DIANA JANE COOK, sued as: Corporal Cook; ZACHARY J. VIERHELLER, sued as: Detention Officer Zack Veirhiller; OFFICER WARREN, detention officer; OFFICER SHAWN, detention officer; WENCESLAO AGUILA, sued as: detention officer Aguila; OFFICER MARTAIN, detention officer; STANLEY GLANZ, Sheriff Tulsa County; RON ISAAC, also known as Ron Isman, Defendants-Appellees. (D.C. No. 96-CV-430-BU) (N.D.Okla.)

ORDER AND JUDGMENT *2

Before ANDERSON, KELLY and BRISCOE, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Brian Dubuc appeals the district court’s grant of s ummary judgment to defendants in his 42 U.S.C. § 1983 action and seeks to proceed on appeal in forma pauperis. We grant leave to proceed in formapauperis, affirm in part, reverse in part, and remand. Dubuc was held as a pretrial detainee in the Tulsa, Oklahoma, County Jail. His § 1983 action alleged unconstitutional conditio ns of confinement, inadequate health care, excessive use of force by officers, ph ysical attacks by prisoners, and disciplinary segregation without a due process hear ing.
I. Dubuc first contends the district court erred in de nying him leave to amend his complaint. Dubuc sought to add allegations of conduct that occurred after the complaint was filed and to name additional defendan ts. The district court noted that Dubuc’s motion to amend came almost seven months after defendants’ motions for summary judgment. We cannot say the di strict court’s denial constituted an abuse of discretion. See Viernow v. Euripides Dev. Corp. , 1573

F.3d 785, 799 (10th Cir. 1998).
II. Dubuc next contends the district court erred in dis missing part of his complaint. The court properly dismissed his Eighth Amendment claims because he was a pretrial detainee. See Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th Cir. 1999) (“Pretrial detainees are protected underthe Due Process Clause rather than the Eighth Amendment.”). The district court also dismissed Dubuc’s case agai nst medical defendants Isaac, Johnson, Rodriguez, and Russell because Dubu c’s allegations against them did not rise to the level of deliberate indifferenc e. To state a claim, Dubuc must allege “acts or omissions sufficiently harmful to e vidence deliberate indifference to serious medical needs.” Estelle v. Gamble , 429 U.S. 97, 106 (1976). After reviewing the record, we conclude Dubuc failed to s tate a claim against the medical defendants. See Realmonte v. Reeves , 169 F.3d 1280, 1283 (10th Cir. 1999) (“In reviewing a motion to dismiss, we acceptthe well-pleaded allegations of the complaint as true and construe them in the l ight most favorable to the nonmoving party.”).
III. Dubuc argues the district court erred in refusing t o appoint counsel for him. The court denied his request for counsel afte r “reviewing the merits of4

[Dubuc’s] case, the present procedural posture of t he case, the nature of the factual issues involved, [Dubuc’s] ability to inves tigate the crucial facts, the probable type of evidence, [Dubuc’s] capability to present his case, and the complexity of the legal issues.” Record Doc. 59 at6. After reviewing the record, we find that the district court did not abu se its discretion in not appointing counsel for Dubuc. See Rucks v. Boergermann , 57 F.3d 978, 979 (10th Cir. 1995).
IV. Dubuc also asserts the district court erred in deny ing his request for discovery. Federal Rule of Civil Procedure 56(f) a llows a district court to order discovery when the affidavits of a party indicate that the party “cannot . . . present by affidavit facts essential to justify the party’s opposition [to summary judgment].” After reviewing the record, we conclud e the district court did not abuse its discretion in denying Dubuc’s request for discovery. Building and Const. Dept. v. Rockwell Intern. Corp. , 7 F.3d 1487, 1496 (10th Cir. 1993).
V. The district court granted summary judgment to defe ndants on Dubuc’s remaining claims. We review the district court’s g rant of summary judgment de novo, viewing the evidence and all reasonable infer ences derived therefrom in the light most favorable to the nonmoving party. See Kidd v. Taos Ski Valley,5

Inc. , 88 F.3d 848, 851 (10th Cir. 1996). Dubuc contends the district court erred in deciding the credibility of witnesses in granting summary judgment. The court noted “it is not possible to know precisely what happened without adjudging the credibility of the two differing versions” of the story, but used the abse nce of evidence of physical harm to conclude there was no evidence of excessive force. Record Doc. 53 at 17. It is inappropriate for a court to weigh credi bility on a motion for summary judgment. This court has found that physical injury is not required to prove the use of excessive force. Martin v. Board of County Comm’rs , 909 F.2d 402, 406- 07 (10th Cir. 1990). Therefore, the district courterred in using lack of physical injury as a basis to grant summary judgment on Dubu c’s excessive force claims. The district court refused to consider Dubuc’s newl y discovered evidence of a witness to the incident because it did not affect the court’s conclusion that Dubuc failed to prove he had suffered any physical injury . As we have concluded the court’s reliance upon the absence of evidence of ph ysical harm was erroneous, the court also erred when it relied upon the same r ationale in rejecting Dubuc’s newly discovered evidence. The court should recons ider that ruling upon remand. The district court granted summary judgment to defe ndants on Dubuc’s condition of confinement claims, finding Dubuc did not establish the existence of6

a condition that would amount to punishment or othe rwise constitute an unconstitutional condition of confinement. The cou rt granted summary judgment on Dubuc’s claim of lack of personal safety, findin g no evidence that defendants disregarded any known risk to Dubuc. After reviewi ng the entire record before us, including the district court’s detailed order f iled October 9, 1997, we conclude that Dubuc failed to establish these claim s. In regard to his procedural due process claims, Dub uc argues that the issue of whether defendants had qualified immunity was a question for the jury. The district court found defendants were protected by q ualified immunity because Dubuc did not show they had violated “clearly estab lished . . . constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). Dubuc does not attack th e substance of the district court’s finding that whether a pretrial detainee wa s entitled to procedural due process for disciplinary confinement was not clearl y established. Whether the law was clearly established is a legal question, no t appropriate for jury review. The district court did not err in granting summary judgment on Dubuc’s procedural due process claims.
VI. The district court denied Dubuc’s motion for leave to proceed on appeal in forma pauperis under 28 U.S.C. § 1915(g), finding D ubuc had brought three prior7

civil actions that were dismissed as frivolous or m alicious or for failure to state a claim. However, the court erred in counting Dubuc’s appeal in Dubuc v. City of Tulsa , No. 97-CV-650-B (N.D. Okla. 1998), because that appeal was pending when Dubuc filed his notice of appeal in this case, see Dubuc v. City of Tulsa , 1999 WL 668823 (10th Cir. 1999). See Jennings v. Natrona County Detention Center Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (finding that unexhausted proceedings are not counted for purpose s of § 1915(g)). The district court erred in denying Dubuc leave to proceed on ap peal in forma pauperis under § 1915(g). Dubuc’s motion to proceed on appeal in forma pauper is is GRANTED. Defendants’ motion to dismiss the appeal is DENIED. The decision of the district court is AFFIRMED IN PART and REVERSED AND PART, and this matter is REMANDED for further proceedings on Dubuc ’s excessive force claim. Entered for the Court Mary Beck Briscoe Circuit Judge