                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     June 23, 2009
                     UNITED STATES COURT OF APPEALS
                                                                  Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                    Clerk of Court



    KEVIN B. DICKINSON,

                Plaintiff-Appellant,

    v.                                                   No. 08-2089
                                            (D.C. No. 1:06-cv-00257-MCA-LAM)
    NEW MEXICO BEHAVIORAL                                 (D. N.M.)
    HEALTH INSTITUTE,

                Defendant,

    PAUL BAGWELL; PIERRE
    ROUZAUD; BIKRAIM ALADDI,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before BRISCOE, BALDOCK, and HOLMES, Circuit Judges.



         Plaintiff Kevin B. Dickinson, a prisoner of the State of New Mexico

appearing pro se, appeals from the district court’s order granting summary



*
       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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
judgment to defendants in this civil rights suit brought pursuant to 42 U.S.C.

§ 1983. We have jurisdiction under 28 U.S.C. § 1291 and affirm.


                                          I.

      We summarize the course of the proceedings in this case as follows. In

March 2006, plaintiff filed his pro se complaint against the New Mexico

Behavioral Health Institute (NMBHI) and three individuals who were NMBHI

employees during the time period relevant here. R., Vol. 1, Doc. 1. The

individual defendants are sued in their individual and official capacities, and are

all doctors who were on staff at NMBHI when plaintiff was confined there for

four months pursuant to a commitment order in an attempt to restore his

competency to stand trial in a state criminal case. Plaintiff was subsequently

released from NMBHI, tried, and convicted. Plaintiff claims he was denied

necessary medical and psychological treatment and testing, as well as adequate

access to legal materials and a computer. He claims his First and Fourteenth

Amendment rights were violated while he was confined at NMBHI. With his

complaint, plaintiff filed a motion for appointment of counsel. Id., Doc. 2. The

magistrate judge denied the motion because “Plaintiff’s pleadings indicate to the

Court that Plaintiff appears to understand the issues in the case and to be capable

of representing himself in an intelligent and coherent manner.” Id., Doc. 8, at 2

(citing Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995)).


                                         -2-
      In June 2006, the district court sua sponte reviewed plaintiff’s complaint

pursuant to 28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P. 12(b)(6) and dismissed

plaintiff’s claims against NMBHI with prejudice because NMBHI is not a

“person” for purposes of 42 U.S.C. § 1983. R., Vol. 1, Doc. 9, at 2-3. The three

individual defendants filed their Martinez report 1 in November 2006. Plaintiff

filed objections and other motions in response to the Martinez report, including an

objection that some of the attachments to the Martinez report were not legible.

R., Vol. 1, Doc. 32-34, 37. Defendants resubmitted their Martinez report and

filed a supplement to it in February 2007. Id., Docs. 41-42.

      In June 2007, plaintiff filed his third motion requesting meaningful access

to an adequate law library and a computer and, in this request, asked in the

alternative for the district court to stay the suit until after his projected release

from prison at the end of January 2009. Id., Doc. 60, at 1. The magistrate judge

denied these requests in a thorough written order in December 2007, noting in

particular that plaintiff had submitted a notice of change of address showing that

he had been released from NMBHI at least by mid-April 2007, see id., Doc. 52,

and plaintiff had not shown that the defendants in this case had any control over

his access to legal materials or a computer where he was then confined. Id.,

Vol. 2, Doc. 80, at 4. The magistrate judge denied plaintiff’s request for a stay

because his motion showed that he had access to legal materials (although he

1
      See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

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complained that it was inadequate), and his filings showed that he was able to

write legibly, so he was able to litigate his claims. Id. at 6. The magistrate judge

concluded that staying the case until after January 2009 would prejudice the

defendants, however. Id. The magistrate judge denied plaintiff’s subsequent

motion for reconsideration because he provided no factual or legal basis showing

error in the prior order. Id., Vol. 4, Doc. 97, at 3.

      In July 2007 (before the magistrate judge ruled on plaintiff’s motion for

meaningful access to legal materials and a computer or to stay the suit), the three

individual defendants filed their motion for summary judgment and memorandum

in support. Id., Vol. 2, Docs. 64-65. Plaintiff did not file a response to this

motion, although he had filed objections and other motions in response to their

Martinez report. Defendants’ motion for summary judgment was referred to the

magistrate judge.

      In August 2007, more than a year after he filed his original complaint,

plaintiff moved to amend his complaint to add new defendants and new claims

based on subsequent events. Id., Doc. 69. The magistrate judge denied the

motion because of plaintiff’s undue delay in seeking to amend and supplement his

complaint and because granting the motion would prejudice the existing

defendants, whose dispositive motion was ready for ruling. Id., Vol. 3, Doc. 82,

at 9-10. Plaintiff filed a motion for reconsideration, id., Doc. 85, but the




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magistrate judge denied it because plaintiff had provided no factual or legal basis

showing error in the prior ruling, id., Vol. 4, Doc. 96, at 3.

      In February 2008, the magistrate judge issued a thorough recommendation

that defendants’ motion for summary judgment be granted. Id., Doc. 99. Because

plaintiff appeared pro se, the magistrate judge construed his pleadings and

submissions liberally. Id. at 3 (citing Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (per curiam)). The magistrate judge examined plaintiff’s medical claims

and found them all to be wanting under the “deliberate indifference” standard that

applies to pretrial detainees. Id. at 16-17 (discussing Estate of Hocker ex rel.

Hocker v. Walsh, 22 F.3d 995, 998 (10th Cir. 1994), and Estelle v. Gamble,

429 U.S. 97, 104 (1976)). The magistrate judge concluded based on her thorough

analysis that defendants addressed and treated plaintiff’s medical needs while he

was confined at NMBHI. Id. at 17-30. The magistrate judge also thoroughly

reviewed and rejected plaintiff’s claim that he was denied his constitutional right

of access to the courts while he was confined at NMBHI. Id. at 30-36.

      Plaintiff filed written objections to the magistrate judge’s recommendation.

Id., Vol. 5, Doc. 105. On de novo review, the district court concluded that

plaintiff’s objections were without merit and defendants were entitled to summary

judgment. Id., Doc. 110, at 1. The court explained that plaintiff was not excused

from his failure to file a response to defendants’ motion for summary judgment,

because the magistrate judge’s order for a Martinez report “gave Plaintiff specific

                                          -5-
notice that the Martinez report could be used in deciding whether to grant

summary judgment on his claims,” and he should file his responsive materials,

“including, but not limited to, any counter-affidavits or other responsive

material.” Id. at 2 (quotation omitted). Plaintiff’s responses to the Martinez

report showed that he understood the magistrate judge’s statement. Id. The court

also noted that the magistrate judge issued an order setting deadlines for

responses to dispositive orders. Id. The court rejected plaintiff’s assertions that

he had inadequate access to a law library and should have been given access to a

computer. Id. at 3-5, 9-10. The court found no error in the magistrate judge’s

failure to consider plaintiff’s amended complaint, because plaintiff was never

granted leave to amend his complaint. Id. at 5. The magistrate judge had denied

plaintiff’s motion to amend and motion for reconsideration. Id. The court

rejected plaintiff’s argument that the district court, not the magistrate judge,

should have ruled on his motion for meaningful access to legal materials and a

computer or to stay the case until he was released from prison because the

magistrate judge’s rulings on the original motion and on the motion for

reconsideration were not a part of the magistrate judge’s proposed findings and

recommended disposition and therefore were not properly raised in plaintiff’s

objections to that recommendation. Id. at 10-11. The court rejected plaintiff’s

argument that the magistrate judge should have told him the legal standard for

“deliberate indifference,” because the court should not act as plaintiff’s advocate.

                                          -6-
Id. at 12 (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The

court rejected plaintiff’s other objections because they were not specific enough,

id. at 6; they were improper attempts to raise new issues that were not before the

magistrate judge, id. at 6-7, 9; they were vague and/or conclusory, id. at 8, 9, 11,

12, 13, 14; or they were unexplained, id. at 7-8, 12.


                                          II.

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

applying the same legal standard used by the district court.” Martinez v. Beggs,

563 F.3d 1082, 1088 (10th Cir. 2009). “Summary judgment should be granted ‘if

the pleadings, the discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.’” Id. (quoting Fed. R. Civ. P. 56(c)).

      On appeal, plaintiff argues that: (1) defendants denied him access to the

courts by refusing to provide him meaningful access to legal materials or someone

trained in the law; (2) defendants were deliberately indifferent to his serious

psychological needs by refusing either to evaluate or treat him or to refer him to a

mental health provider; (3) the district court did not address his allegation that the

unit at NMBHI was unclean and smelled of urine and feces; (4) the district court

should have granted his request for appointed counsel because he had been

declared incompetent to stand trial and because he had no adequate access to legal


                                          -7-
materials or someone trained in the law; (5) the district court should have granted

his motion to stay the case until he was released from prison and could do legal

research and type his papers; (6) the district court should have allowed him to

amend his complaint or considered his proposed amended complaint.

      We have reviewed the parties’ briefs and the record on appeal. We are

unpersuaded by plaintiff’s assertions of error, in light of the very thorough

analysis done by the magistrate judge and the district court and the very high

legal standards that apply to plaintiff’s claims.

      In order to state a viable claim of “deliberate indifference” to medical

needs, plaintiff was required to show “both an objective and a subjective

component.” Sealock v. Colo., 218 F.3d 1205, 1209 (10th Cir. 2000). “The

objective component is met if the deprivation [of medical care] is ‘sufficiently

serious[,]’” meaning that the medical need “is one that has been diagnosed by a

physician as mandating treatment or one that is so obvious that even a lay person

would easily recognize the necessity for a doctor’s attention.” Id. (quoting

Farmer v. Brennan, 511 U.S. 825, 834 (1994)) (further quotation omitted).

“The subjective component is met if a prison official ‘knows of and disregards an

excessive risk to inmate health or safety.’” Id. (quoting Farmer, 511 U.S.

at 837). In order to show a denial of his constitutional right of access to the

courts arising from an alleged lack of adequate legal materials, plaintiff was

required to “‘demonstrate that the alleged shortcomings in the library or legal

                                          -8-
assistance program hindered his efforts to pursue a legal claim.’” Penrod v.

Zavaras, 94 F.3d 1399, 1403 (10th Cir. 1996) (per curiam) (quoting Lewis v.

Casey, 518 U.S. 343, 351 (1996) (emphasis added)).

      Plaintiff did not satisfy these high legal standards. The magistrate judge’s

recommendation states that “Plaintiff disagrees with the mental health care he was

given at NMBHI, but this does not amount to a constitutional violation.” R.,

Vol. 4, Doc. 99, at 20. The magistrate judge carefully reviewed plaintiff’s claims

about his alleged ADHD and defendants’ failure to treat this condition, as well as

his COPD, back pain, skin rashes and a cancerous growth, and his allegation that

the unit at NMBHI was unclean and smelled of urine and feces. The magistrate

judge concluded, based on the facts presented, that defendants had addressed

plaintiff’s medical concerns, including referrals to outside healthcare providers

where appropriate. Treatments and medications were provided to plaintiff. As

regards his claim that defendants failed to treat him for Hepatitis C, which he had,

or to test him for HIV, plaintiff has not alleged any harm and therefore has failed

to establish the objective element of the deliberate indifference standard. As

regards his claim that the conditions at NMBHI were unsanitary—even if

accepted as true—plaintiff makes no allegation of physical injury and therefore

cannot recover an award of compensatory damages for that claim. See Perkins v.

Kan. Dep’t of Corr., 165 F.3d 803, 807-08 (10th Cir. 1999).




                                         -9-
       Plaintiff also failed to show that the alleged denial of legal resources at

NMBHI hindered his defense in his state criminal case. Although he represented

himself at his criminal trial, he was appointed a very capable “standby counsel” to

assist him. R., Vol. 4, Doc. 99, at 33. Plaintiff has shown no prejudice to his

defense—or in his filing of a habeas action.

       This case has been very thoroughly addressed by both the magistrate judge

and the district court, which both had the benefit of a Martinez report, as well as

defendants’ affidavits in support of their summary judgment motion. The district

court’s ruling also addressed plaintiff’s objections to the magistrate judge’s

proposed findings and recommended disposition. We are unpersuaded by

plaintiff’s assertions of error, and affirm for substantially the reasons stated by

the district court.

       AFFIRMED.

                                                      Entered for the Court



                                                      Mary Beck Briscoe
                                                      Circuit Judge




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