* This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3. 

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

### SEP 22 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LARRY GORDON,

Plaintiff-Appellant,

v. TOL SCOTT; MICHAEL LIND; JEFFREY HIJAR; DARWIN THORNTON; ELIZABETH TAPER,

Defendants-Appellees. No. 04-1058 (D. Colorado) (D.C. No. 97-RB-1743(CBS))

ORDER AND JUDGMENT *

Before KELLY , HENRY , and TYMKOVICH , Circuit Judges. After examining the briefs and appellate record, th is panel has determined unanimously to decide this case on the briefs witho ut oral argument. See F ED . R. A PP . P. 34(a) and 10 TH C IR . R. 34.1(G). The case is therefore ordered submitte d without oral argument.-2-

Larry Gordon appeals the jury verdict against him, contending (1) ineffective assistance of counsel, (2) improper jury instructions, and (3) due process violations resulting from perjured testimon y and new evidence. We reject Mr. Gordon’s appeal, holding that (1) he is not ent itled to effective assistance of counsel in a civil case; (2) the jury instructions did not raise any plain error; and (3) Mr. Gordon can not show prejudice or a due proc ess violation for the alleged perjured testimony. I. BACKGROUND Larry Gordon, an inmate at the Limon Correctional F acility (“LCF”), brought this suit pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Person Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq . Mr. Gordon alleged that in 1997, LCF kitchen workers dropped s ome meat on the floor, picked it up, washed it off, reheated it, and serve d it to Muslim inmates during Ramadan. When Mr. Gordon attempted to alert other inmates not to eat the meat, Michael Lind, who was a correctional officer assign ed to work in the kitchen, allegedly threatened to write him up for a facility disruption. Mr. Gordon exhausted the grievance process, and he alleged tha t Officers Hijar and Thornton (also on kitchen assignment) labeled him a “rat” an d a “buster” in front of other inmates. He also alleges that the defendants attem pted to instigate other inmates who were members of the “Rolling 30 Crips” gang to attack him. Finally, Mr.-3-

Gordon alleged that defendant Elizabeth Taper, who was his case manager, revoked a portion of his good time credits in retal iation for his filing grievances. The district court dismissed several of Mr. Gordon’ s claims, and only two claims against five defendants went to trial before a jury: (1) an Eighth and Fourteenth Amendment claim against defendants Scott , Lind, Hijar, and Thornton for allegedly releasing information regarding Mr. G ordon’s criminal convictions to other inmates, and referring to him as a “rat” i n front of other prisoners, and (2) a Fourteenth Amendment claim against defendant Taper for allegedly revoking Mr. Gordon’s good time credits without a hearing. The jury decided these two claims in favor of the defendants. Mr. Gordon, proceeding pro se, appeals the jury ver dict. He alleges (1) violation of his Sixth Amendment right to effective assistance of counsel, (2) improper jury instructions and (3) that new evidenc e and/or the presentation of perjured testimony warrants a new trial. We reject each of these claims and affirm the jury verdict. II. DISCUSSION A. Ineffective Assistance of Trial Counsel The district court appointed attorney Michael Ander son to represent Mr. Gordon in the proceeding below. To the extent Mr. Gordon claims he was denied his constitutional right to effective assistance of counsel at trial, this right does-4-

not apply to civil trials. See MacCuish v. United States , 844 F.2d 733, 735 (10th Cir. 1988). Mr. Gordon’s remedy for any alleged in competence by his counsel is through a malpractice action against counsel, not t hrough any relief from the judgment in this case. Id. at 735-36. B. Jury Instructions Mr. Gordon next contends that the district court’s instructions were prejudicial in a variety of ways, including their p urported omission of references to deliberate indifference, the duty to protect pri soners, the individual and official capacity of the defendants, danger creation, retali ation, and the omission of an instruction regarding his theory of the case. Mr. Gordon’s counsel did not object to the proffere d instructions. Reviewing the jury instruction under a plain error standard, we affirm the substance of jury instructions. See United States v. Fabiano, 169 F.3d 1299, 1302 (10th Cir.1999) (“We review a jury instruction ... for plain error when no objection was made [at trial].”). “Under that stand ard, we will affirm unless the instructions were patently, plainly erroneous and p rejudicial.” Greene v. Safeway Stores, Inc., 210 F.3d 1237, 1245 (10th Cir. 2000) (internal quo tation marks omitted). We do not review any particular instruct ion in isolation; rather, we “must view the [jury] instructions in their entiret y. . . .” Coleman v. B-G Maint. Mgmt. of Colo., Inc., 108 F.3d 1199, 1202 (10th Cir. 1997). We have reviewed-5-

the stipulated jury instructions, Mr. Gordon’s prop osed jury instructions, the defendants’ proposed jury instructions, and the sub stance of Mr. Gordon’s nearly incomprehensible suggestions for instructions in th is appeal. The district court’s instructions were not prejudicial and there was no plain error. 3. Perjured Testimony and/or New Evidence Mr. Gordon contends that the defendants presented p erjured testimony that prejudiced him. He maintains that Officer Scott’s testimony that he saw Officer Lind throw the tainted meat into the trash was fals e because Officer Scott did not work on the day in question. He also suggests that Officer Hijar stated he was on “roving” patrol, but in fact Officer Hijar was only “working side one.” Aplt’s Br. att. 2 at (I). Thus, surmises Mr. Gordon, “all of the officers and their attorney used false testimony, and abused process, . . . vio lating . . . the due process clause.” Id. at (I)-(II). Mr. Gordon does not explain how the above testimony might have influenced the jury’s verdict, nor does he identify any newly discovered that might be relevant to this case. We are unable to review Mr. Gordon’s perjured testi mony claim on appeal because he did not provide a trial transcript. See F ED . R. A PP . P. 10(b)(2) (“If the appellant intends to urge on appeal that a finding or conclusion is unsupported by the evidence or is contrary to the evidence, the ap pellant must include in the record a transcript of all evidence relevant to tha t finding or conclusion.”).-6-

Similarly, without more, we are unable to address t he “new evidence” claim. See also F ED . R. C IV . P. 60(b)(2) (party may seek relief from final judgm ent if it has newly discovered evidence which due diligence would not have uncovered). Finally, we note that in his reply brief, Mr. Gordo n raises new yet conclusory allegations for the first time. He alle ges that since 1994, he has been “subjected to torture of sleep deprivation, death t hreats, brainwashing, intimidation, each and every night when [he] was tr ing [sic] to slepp [sic] in these cells,” and that he “was singled out for this treat ment” because of his race. Reply Br. at (II). Particularly in light of Mr. Gordon’ s failure to provide sufficient factual support for these claims, we decline to con sider them. See Riddle v. Mondragon , 83 F.3d 1197, 1202 (10th Cir. 1996) (conclusory f actual allegations by pro se litigant are insufficient to state a clai m on which relief can be based); United States v. Mitchell , 783 F.2d 971, 975 (10th Cir. 1986) (issues not ra ised before district court generally will not be conside red on appeal). II. CONCLUSION For the reasons stated, we AFFIRM the district cour t’s judgment. We deny Mr. Gordon’s motion to reopen the district court’s judgment, and his motion requesting the appointment of counsel. We also den y Mr. Gordon’s motion to proceed in forma pauperis as moot because the distr ict court already granted such-7-

a motion. We remind Mr. Gordon that he is still ob ligated to make partial payments until the entire balance of the appellate filing fee has been paid.

Entered for the Court,

Robert H. Henry Circuit Judge