This order and judgment is not binding precedent, except under the *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

F I LED

United States Court of Appeals

Tenth Circuit

August 4, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JERRY WILLIAM DICKEY, 

Plaintiff-Appellant, No. 05-4289

v. (D.C. No. 2:97-CV-782-PGC)

LIEUTENANT J. MERRICK;

SERGEANT MATTINGLEY;

LIEUTENANT BEEMUS; OFFICER

NELSON; OFFICER

GAMVROULAS; and OFFICER

RENFRO, 

(D. Utah)

Defendants-Appellees.

 

ORDER AND JUDGMENT

*

Before KELLY, McKAY, and LUCERO, Circuit Judges.

After examining the briefs and the appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

resolution of this appeal. See Fed. R. App. P. 34(a)(2). The case is therefore

ordered submitted without oral argument.

Appellant is a state prisoner, appearing pro se, who commenced this action

in 1997, claiming that he was assaulted and injured by other inmates while
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incarcerated at the Salt Lake County Metro Jail. Appellant brought this action

under 42 U.S.C. § 1983, alleging that prison employees knew he would face a

substantial risk of serious harm if exposed to other inmates at the jail but

deliberately disregarded that risk, causing him to be attacked and injured. 

When this action was first filed, the district court dismissed Appellant’s

complaint for failure to exhaust administrative remedies. On appeal, we

determined that the record was insufficient to support a dismissal for failure to

exhaust and thus reversed and remanded for further proceedings. Dickey v.

Kennard, 156 F.3d 1243 (10th Cir. 1998). Following remand, Appellant was

allowed to file an amended complaint. The district court then directed the named

Appellees to file a Martinez report addressing whether Appellant had exhausted

all administrative remedies. Appellees filed a Martinez report, which was

erroneously docketed as a Motion for Summary Judgment. Appellant did not

respond to the Martinez report, but instead filed a series of unsupported motions,

including motions for injunctive relief. The district court ordered additional

briefing from both parties, to which Appellant did not respond. On February 19,

2003, the district court again dismissed all but one of Appellant’s claims, and

granted summary judgment to the Appellees on the only exhausted claim.

Appellant again appealed to this court and we again reversed, concluding

that the award of summary judgment on the one exhausted claim was improper

because Appellees never filed an actual summary judgment motion and
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consequently Appellant was not given adequate notice or opportunity to respond. 

Dickey v. Merrick, 90 Fed. Appx. 535 (10th Cir. 2003). Following this second

remand, the district court invited Appellees to file an actual motion for summary

judgment and instructed Appellant that he must respond. Appellant did not

respond directly, but instead renewed his motion for injunctive relief, asserting

that prison officials were denying him access to his legal materials. The district

court then ordered the Utah Attorney General’s office to investigate and file a

report addressing the legal access concerns. After receiving the report and

allowing Appellant an opportunity to respond, the court denied his motion for

injunctive relief. Appellant was also directed to respond to Appellee’s summary

judgment motion and was given additional reminders and twice the allotted sixty

days in which to do so. Appellant did not respond to the pending motion for

summary judgment, and the district court denied his additional motions for

injunctive relief and granted summary judgment to Appellees. Order, 15 (D. Utah

Sept. 28, 2005).

Appellant claims that he was attacked twice by other inmates while in the

county jail. The district court found nothing in the record where Appellant stated

any injuries from the second attack. We therefore agree with the district court’s

grant of summary judgment to Appellees on the second attack. Id. at 11-12. As

to the first attack, the district court analyzed Appellant’s claim under the Farmer

v. Brennan, 511 U.S. 825, 837 (1994), test. Although the district court found that
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Appellant satisfied the first prong–showing that the conditions of his

incarceration posed a substantial risk of serious harm–he failed to satisfy the

second prong. Order, at 9-12 (noting that Appellant was involved in the murder

of an influential gang member and was being held in protective custody). The

second prong of the test requires Appellant to establish that the prison official

was deliberately indifferent to his health and safety. The district court carefully

reviewed Appellant’s claim but found that Appellant had made an informed

decision to risk his own safety by choosing to go to the recreation yard when

inmates “on the behavior modification tier” were present. Id. at 13. Appellant

was given the option to go into the yard under those terms and was subsequently

attacked. We agree that Appellant did not “satisfy his burden on summary

judgment of setting forth specific facts showing that [Appellees] were deliberately

indifferent to his safety concerns.” Id. at 14.

We have carefully reviewed the briefs of Appellant and Appellees, the

district court’s disposition, and the record on appeal, and for substantially the

same reasons as the district court stated in its order of September 28, 2005, we

AFFIRM the denial of Appellant’s additional claims and the grant of summary

judgment for Appellees. We deny Appellant’s motion to pay the filing fee in 
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partial payments and order immediate payment of the unpaid balance due on his

filing fee.

Entered for the Court

Monroe G. McKay

Circuit Judge