                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                      May 30, 2008
                    UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                      Clerk of Court
                                 TENTH CIRCUIT



 DAVID KAY WIENS,

               Plaintiff - Appellant,                   No. 08-6027
          v.                                         (W.D. Oklahoma)
 M.D. DOCTOR ZEAVIN; MRS.                       (D.C. No. 5:06-cv-01286-F)
 PETRASH, Physician’s Assistant;
 MRS. GRISMER, Health Services
 Administrator; JOHN DOE, Federal
 and State Officers,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      David Kay Wiens filed in the United States District Court for the Western

District of Oklahoma a civil-rights complaint alleging a violation of the Eighth

Amendment by federal prison staff who were deliberately indifferent to his

medical needs. See Bivens v. Six Unknown Named Agents of Fed. Bureau of


      *
       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not binding precedent except under the doctrines of law of the case, res judicata,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.
Narcotics, 403 U.S. 388 (1971) (permitting claims against federal officers who

violate a plaintiff’s constitutional rights). In a thorough Report and

Recommendation (R&R) the magistrate judge assigned to the case recommended

denial of the claims. The district court adopted the recommendation and

dismissed the complaint.

      On appeal Mr. Wiens, appearing pro se, challenges the district court’s (1)

dismissal of his civil-rights complaint, (2) denial of his motion to compel

discovery and present evidence, and (3) denial of his motions for the appointment

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

      For the reasons stated in the R&R, we affirm the dismissal of the Eighth

Amendment claims. As for Mr. Wiens’s contention that he was denied discovery

and the ability to present evidence, he has not identified any evidence of a

disputed material fact that he hopes to obtain through discovery or any disputed

material facts that he can prove with his evidence. Because he cannot show

prejudice, he is not entitled to relief. See Davoll v. Webb, 194 F.3d 1116, 1139

(10th Cir. 1999) (denial of discovery will not be disturbed absent a showing that

the court’s decision resulted in “actual and substantial prejudice” to the

complaining litigant). Finally, the district court’s denial of counsel was not an

abuse of discretion. The court reasonably determined that Mr. Wiens’s claims did

not present complex issues and that he had demonstrated his ability to present the

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

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court did not abuse its discretion in denying appointment of counsel in civil case

when plaintiff was able to present his claims without the assistance of counsel).

      We AFFIRM the judgment of the district court. We DENY Mr. Wiens’s

motions to present evidence and his motion for a subpoena.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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