* This order and judgment is not binding precedent, e xcept under the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

### JAN 29 1998 

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

JOHN W. PAUL,

Plaintiff-Appellant,

v. EDWARD J. RUGH, Health Administrator, Corrections Medical Services, Defendant-Appellee. No. 97-2081 (D.C. No. CIV 95-0168 MV/WWD)

(D. N.M.)

ORDER AND JUDGMENT *

Before BRORBY , BARRETT , 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); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 Even though these defendants are not named in the n otice of appeal, we

have jurisdiction over them as appellees. See Mock v. T.G. & Y. Stores Co. , 971 F.2d 522, 531 n.9 (10th Cir. 1992). -2- Plaintiff John W. Paul, a prisoner appearing pro se , filed an action pursuant to 42 U.S.C. § 1983, claiming damages due to improp er parole revocation proceedings and the prison health administrator’s d eliberate indifference to his serious medical needs. On the recommendations of amagistrate judge, the district court dismissed the claims against the par ole officials, and granted summary judgment in favor of the remaining defendant on plaintiff’s deliberate indifference claims. Plaintiff first claims that parole officials Russel l, Terrasas and Romero conspired to supply false information in order to r evoke his parole. 1 Plaintiff does not allege that his parole revocation was reve rsed, declared invalid or otherwise called into question. Therefore, his § 1 983 claim is barred. See Crow v. Penry , 102 F.3d 1086, 1087 (10th Cir. 1996) (citing Heckv. Humphrey , 512 U.S. 477 (1994)). We note that plaintiff’s claim r aised here that his rights under state law were violated by delays in the parole rev ocation hearings was rejected in a previous appeal. See Paul v. McFadin , No. 96-2214, 1997 WL 407843 (10th Cir. July 21), cert denied , 118 S. Ct. 580 (1997). We turn to plaintiff’s claim that defendant Rugh wa s deliberately indifferent to his serious medical needs. See Estelle v. Gamble , 429 U.S. 97, 1042 Martinez v. Aaron , 570 F.2d 317 (10th Cir. 1978). -3- (1976) (constitution protects prisoners from delibe rate indifference to serious medical needs). Plaintiff alleges that defendant Rugh, the prison health administrator, countermanded his physician’s order for a back brace. He further contends that defendant Rugh failed to inform his p rison work supervisors of his medical restrictions, causing him to lose good time credits when he refused to work because he was unable to perform the work he w as assigned. We review the grant of summary judgment de novo, ap plying the same standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated Secs., Inc. , 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary j udgment is appropriate when there is no genuine dispute over amaterial fact and the moving party is entitled to judgment as a matter of law.” Russillo v. Scarborough , 935 F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp. , 938 F.2d 1105, 1110 (10th Cir. 1991). On appeal, plaintiff claims (1) he was not permitte d to cross-examine fully the defendant and a defense witness, (2) defendant failed to comply with his discovery requests, (3) the district court improper ly used the Martinez report 2 to resolve disputed facts, (4) genuine issues of disputed material facts preclude-4-

summary judgment, and (5) the district court refuse d to appoint counsel for plaintiff. The magistrate judge held a hearing on defendant Ru gh’s motion for summary judgment. The record reflects no restricti on on plaintiff’s ability to adduce testimonial or documentary evidence at the s ummary judgment hearing. To the contrary, the magistrate judge granted him w ide latitude to present his case. Plaintiff claims that he was prevented from presenting evidence of his medical work restrictions, but the documents he sou ght to introduce in support were admitted into evidence. See R. vol. III, at 76. As for his claim that he was prejudiced by defendant Rugh’s failure to respond t o his discovery requests, he has made no showing of how the failure to provide d iscovery adversely affected his ability to oppose summary judgment. See Jensen v. Redevelopment Agency , 998 F.2d 1550, 1554-55 (10th Cir. 1993) (no abuse o f discretion to deny extension of time for discovery where plaintiff fai led to identify facts he believed would be revealed by discovery). Accordingly, the district court did not abuse its discretion in the conduct of the hearing or its man agement of discovery. See United States v. Lampley , 127 F.3d 1231, 1238 (10th Cir. 1997) (evidentiary rulings reviewed for abuse of discretion); Jensen , 998 F.2d at 1553 (denial of Fed. R. Civ. P. 56(f) discovery motion reviewed for abus e of abuse of discretion).-5-

Plaintiff is correct that a Martinez report may not resolve disputed issues of fact, see Northington v. Jackson , 973 F.2d 1518, 1521 (10th Cir. 1992), and that summary judgment may not be granted unless there ex ist no genuinely disputed issues of material fact, see Fed. R. Civ. P. 56(c). However, a plaintiff’s fai lure “to establish the existence of an element essential to [his] case, . . . on which [he] will bear the burden of proof at trial,” will resul t in a determination that there exists no genuine dispute over material facts. Cel otex Corp. v. Catrett , 477 U.S. 317, 322-23 (1986). Here, plaintiff alleged that his physician prescrib ed a back brace, but defendant Rugh refused to order one. The physicianchanged his initial opinion that plaintiff needed a back brace, and concluded t hat he did not need one. More to the point, defendant Rugh did not have the autho rity to override the physician’s decision whether to order a back brace for plaintif f. See R. vol. III, at 6, 20-21. Plaintiff did not present evidence that defendant Rugh’s actions resulted in the denial of a back brace prescribed by his physician, a showing required to defeat summary judgment. In response to plaintiff’s allegations that defendant Rugh failed and refused to provide information of his medical restrictions to prison job supervisors, defendant Rugh testified that medical work restrict ions were written by the inmate’s physician. See id. at 11. Defendant Rugh further testified that he w as-6-

not responsible for disseminating those orders, andhe did not interfere with the delivery of plaintiff’s medical restriction orders. See id. at 10-12. Plaintiff points to no admissible evidence to refute defendan t Rugh’s position that he was not involved in the procedures that plaintiff alleg es violated his rights. Accordingly, because plaintiff failed to establish an essential element of his case, i.e., that defendant Rugh personally participated i n the injurious conduct, see Olson v. Stotts , 9 F.3d 1475, 1477 (10th Cir. 1993) (no liability under § 1983 unless defendant was personally involved in deprivation of plaintiff’s rights), summary judgment was appropriate. Finally, plaintiff asserts that the district court should have appointed counsel for him. “‘There is no constitutional righ t to appointed counsel in a civil case.’” United States v. Gosnell , 961 F.2d 1518, 1521 (10th Cir. 1992) (quoting Durre v. Dempsey , 869 F.2d 543, 547 (10th Cir. 1989)). Upon reviewof all of the materials submitted in this case, we conclude t hat the district court did not err in refusing to appoint counsel.-7-

This appeal is frivolous or fails to state a claim under 28 U.S.C. § 1915(e)(2)(B) for purposes of counting “prior occ asions” under 28 U.S.C. § 1915(g). The appeal is DISMISSED. The mandate s hall issue forthwith.

Entered for the Court

James E. Barrett Senior Circuit Judge