* This order and judgment is not binding precedent, e xcept under the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 24 2002 

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

PATRICK HAWKINSON,

Plaintiff-Appellant,

v. GARY STROBRIDGE, Major; SHERRY PATTERSON, Lieutenant; WILLIAM BUCK, Lieutenant; JOHN CLARKSON, Lieutenant; WILLIAM BELL, Captain; WARREN DIESLIN, Superintendent of the Buena Vista Correctional Facility,

Defendants-Appellees. No. 01-1201 (D.C. No. 93-N-649) (D. Colo.)

ORDER AND JUDGMENT *

Before EBEL , 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-2-

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. Plaintiff Patrick Hawkinson, a Colorado state priso ner proceeding pro se on appeal, challenges the district court’s refusal to grant him a new trial on his claims that prison officials were deliberately indi fferent to his safety in violation of his Eighth Amendment right to be free from cruel and unusual punishment. At the conclusion of a jury trial, at which Mr. Hawkin son was represented by counsel, a verdict was entered in favor of defendants. Mr. Hawkinson then filed a motion pursuant to Fed. R. Civ. P. 59 requesting a new trial based on several alleged errors that occurred at trial. The distric t court denied the motion, and Mr. Hawkinson appeals. The underlying facts are set forth in the prior, in terlocutory appeal in this

case. Hawkinson v. Romer , No. 94-1490, 1995 WL 363187 (10th Cir. June 16, 1995) (unpublished). Therefore, we do not repeat them. In this appeal, Mr. Hawkinson asserts that his jury trial was infec ted with prejudicial error and that substantial justice was not done. He claims t hat defense counsel’s closing argument was improper because counsel stated that M r. Hawkinson’s experts were paid for favorable testimony and he commented on th e credibility of those experts without any evidentiary support for the argument. Mr. Hawkinson further claims that defense counsel improperly cross-examined him regarding his medical-3-

records and that the district court made several improper evidentiary rulings. He alleges the district court improperly (1) permitteddefense counsel to suggest that Mr. Hawkinson had stolen his own medical records wi thout a good-faith basis for the questions, (2) permitted defense counsel to add uce testimony that Mr. Hawkinson had escaped from prison without also show ing that he was acquitted of the escape charges, and (3) permitted defense co unsel to coach and lead a key defense witness by the use of a secret document. We review the alleged errors to determine whether t he district court abused its discretion. United States v. Broomfield , 201 F.3d 1270, 1276 (10th Cir.) (where contemporaneous objection made, we review fo r abuse of discretion decision to deny new trial due to improper closing argument), cert. denied , 531 U.S. 830 (2000); McCue v. Kan. Dep’t of Human Resources , 165 F.3d 784, 788 (10th Cir. 1999) (“We review a district court’s dec ision to admit or exclude evidence for abuse of discretion.”); Phelps v. Hamilton , 122 F.3d 1309, 1324 (10th Cir. 1997) (district court’s ruling on motionfiled under Rule 59(e) reviewed for abuse of discretion). “Under the abuse of disc retion standard, a trial court’s decision will not be disturbed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances.” Phelps , 122 F.3d at 1324.-4-

In a thoughtful and thorough order and memorandum, the district court considered and denied all of the claims Mr. Hawkins on now presses on appeal. Adopting the reasoning of the district court’s orde r and applying the applicable law to the errors alleged in light of the trial rec ord, we conclude that the district court did not abuse its discretion (1) in its evide ntiary rulings at trial, (2) in denying a new trial based on closing arguments, or (3) in denying Mr. Hawkinson’s Rule 59 motion. Accordingly, we af firm the judgment. The district court granted Mr. Hawkinson leave to proceed on appeal in forma pauperis . He has made some partial payments on the appellate filing fee. He is reminded that he remains obligated “to pay th e full amount of a filing fee.” 28 U.S.C. § 1915(b)(1). AFFIRMED. The mandate shall issue forthwith.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge