                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 24 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VALLEE KENT FLEMMING,

                Plaintiff - Appellant,

    v.                                                   No. 02-6328
                                                   (D.C. No. 01-CV-1615-L)
    CORRECTIONS CORPORATION                            (W.D. Oklahoma)
    OF AMERICA; CURTIS BAKER,
    Medical Administrator for CCA;
    HUSSEIN TORBATI, Physician’s
    Assistant for CCA; RENE WATKINS,
    Deputy Warden for CCA;
    DR. STORY,

                Defendants - Appellees.


                             ORDER AND JUDGMENT           *




Before EBEL , PORFILIO , and McCONNELL , Circuit Judges.



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

unanimously that oral argument would not materially assist the determination




*
      This order and judgment is not binding precedent, except under the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.
of this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff Vallee Kent Flemming, proceeding pro se, appeals from the

district court’s order entering summary judgment in favor of defendants in this

42 U.S.C. § 1983 action alleging that Flemming’s constitutional rights were

violated while he was an inmate at the Cimarron Correctional Facility in Cushing,

Oklahoma. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm in part,

reverse in part, and remand this matter to the district court for further

proceedings.

       In his complaint, plaintiff alleged that defendants violated his Eighth

Amendment right to be free from cruel and unusual punishment by failing to

provide him with adequate medical care between October 1999 and September

2001. In his supplemental report and recommendation, the magistrate judge, after

thoroughly summarizing plaintiff’s prison medical records, R., Doc. 44 at 4-12,

recommended that summary judgment be entered in favor of defendants on

plaintiff’s Eighth Amendment claim, concluding that the undisputed facts showed

that defendants were not deliberately indifferent to plaintiff’s medical needs,

id. at 12-14. The district court adopted the magistrate judge’s recommendation,

and the court entered judgment in favor of defendants on plaintiff’s Eighth




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Amendment claim and dismissed plaintiff’s state law claims without prejudice.

Id. , Doc. 48 at 2-3 and Doc. 49.

       “We review the district court’s grant of summary judgment de novo,

applying the same legal standard used by the district court.”    Kendrick v. Penske

Transp. Servs., Inc. , 220 F.3d 1220, 1225 (10th Cir. 2000) (quotation omitted).

Because plaintiff appears pro se, his pleadings must also be read liberally.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (per curiam). Having conducted

the required de novo review, we agree with the district court that defendants were

entitled to summary judgment on plaintiff’s Eighth Amendment claim, and we

therefore affirm the entry of summary judgment on plaintiff’s Eighth Amendment

claim for substantially the same reasons relied on by the district court.

       We also conclude, however, that, in addition to the claimed Eighth

Amendment violation concerning the medical care he received, plaintiff asserted

two additional claims in his complaint. First, plaintiff alleged that, on February

26, 2001, defendant Torbati placed him in a “medical lock down cell” after

plaintiff refused to allow defendant Torbati to catheterize him to obtain a urine

sample. R., Doc. 1 at 9, ¶¶ 53-59. Second, plaintiff alleged that defendants

Torbati and Baker used coercion, intimidation, and threats to force him to consent

to the catheterization procedure, and, while he ultimately gave his consent,

plaintiff claims his consent was coerced and thus involuntary.    Id. at ¶¶ 61-91.


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      Defendants did not address either of these claims or the underlying

factual allegations in their summary judgment brief and supporting affidavits.

As a result, these claims raised issues of fact that were not rebutted in defendants’

motion for summary judgment. Likewise, the district court overlooked these

claims when it entered summary judgment in favor of defendants Torbati and

Baker. Accordingly, the district court erred in granting summary judgment in

favor of defendants Torbati and Baker despite these unresolved claims, and

we therefore remand the two unresolved claims to the district court for further

proceedings. In light of this disposition, we also vacate the dismissal of

plaintiff’s state law claims, and the district court will need to reconsider whether

to exercise supplemental jurisdiction over the state law claims on remand.

      The judgment of the district court is AFFIRMED IN PART and

REVERSED IN PART, and this matter is REMANDED to the district court for

further proceedings consistent with this order and judgment.


                                                     Entered for the Court


                                                     John C. Porfilio
                                                     Circuit Judge




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