No. 95-2247, Ogden v. Farmington Police
Attached trial court order and magistrate judge’s recommendation not available electronically.
                     UNITED STATES COURT OF APPEALS
Filed 12/6/96
                                  TENTH CIRCUIT



 KEVIN K. OGDEN,

          Plaintiff-Appellant,

 v.
                                                              No. 95-2247
 FARMINGTON POLICE DEPARTMENT; CITY
                                                            (D.C. No. 94-364)
 OF FARMINGTON; SAN JUAN COUNTY
                                                                (D. N.M.)
 DISTRICT ATTORNEY; SAN JUAN COUNTY
 DISTRICT ATTORNEY, Assistant; SAN JUAN
 COUNTY; SAN JUAN COUNTY DETENTION
 CENTER; STATE OF NEW MEXICO,

          Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRORBY, EBEL and HENRY, Circuit Judges.



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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore



      *
        This order and judgment is not binding precedent except under the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.
ordered submitted without oral argument.



      Mr. Ogden brought suit against several public entities and officials

claiming myriad constitutional violations. The United States District Court for

the District of New Mexico dismissed all but one of Mr. Ogden's claims sua

sponte as frivolous pursuant to 28 U.S.C. § 1915(d) (1994). As to Mr. Ogden's

claim he was denied sufficient "yard time" in violation of the Eighth Amendment,

the court granted summary judgment in favor of Defendants. Mr. Ogden now

brings this appeal, and we affirm. 1



      Section 1915(d) authorizes a district court to dismiss a forma pauperis case

if the court is satisfied the action is frivolous or malicious. Denton v. Hernandez,

504 U.S. 25, 33 (1992). A complaint "'is frivolous where it lacks an arguable

basis either in law or fact.'" Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir.

1995) (quoting Nietzke v. Williams, 490 U.S. 319, 325 (1989)). This provision

accords judges the authority to dismiss claims based on indisputably meritless



      1
          Mr. Ogden also argues on appeal that the Detention Center gave him
inadequate medical treatment. However, the district court dismissed this claim
because it was being addressed in another case. See Ogden v. San Juan County
Detention Center, Nos. 94-2272 & 95-2190, ________, 1996. We affirm the
district court's dismissal of the inadequate medical care claim.


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theories. Id. Because the frivolous determination is a discretionary one, we

review dismissals pursuant to § 1915(d) for abuse of discretion. Denton, 504 U.S.

at 33. Upon careful review of the record, we agree with the district court's

determinations, and affirm the dismissals pursuant to § 1915(d) for substantially

the same reasons set forth by the trial court in its attached order.



      We review a grant of summary judgment de novo. Summary judgment is

appropriate if the affidavits and other evidence on record show there is no

genuine issue as to any material fact and the moving party is entitled to judgment

as a matter of law. Wolf v. Prudential Ins. Co., 50 F.3d 793, 796 (10th Cir.

1995). When responding to a motion for summary judgment, a plaintiff can no

longer rely on pleadings alone; instead, the non-movant must set forth, by

affidavits or other evidence, specific facts sufficient to show there is a genuine

issue for trial. Fed. R. Civ. P. 56(e). Upon careful review of the record, we agree

with the magistrate's well-reasoned recommendation; Mr. Ogden failed to present

any evidence supporting his allegations that he was denied "yard time" in

violation of the Eighth Amendment. We therefore affirm the district court's grant

of summary judgment in favor of Defendants for substantially the same reasons

set forth by the magistrate judge in his recommendation attached hereto.




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Entered for the Court:

WADE BRORBY
United States Circuit Judge




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