                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JAN 29 1998
                             FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOHN W. PAUL,

                Plaintiff-Appellant,

    v.                                                   No. 97-2081
                                              (D.C. No. CIV 95-0168 MV/WWD)
    EDWARD J. RUGH, Health                                (D. N.M.)
    Administrator, Corrections Medical
    Services,

                Defendant-Appellee.




                            ORDER AND JUDGMENT *



Before BRORBY, BARRETT, and BRISCOE, 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

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      This order and judgment is not binding precedent, except under the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. 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.
      Plaintiff John W. Paul, a prisoner appearing pro se, filed an action pursuant

to 42 U.S.C. § 1983, claiming damages due to improper parole revocation

proceedings and the prison health administrator’s deliberate indifference to his

serious medical needs. On the recommendations of a magistrate judge, the

district court dismissed the claims against the parole officials, and granted

summary judgment in favor of the remaining defendant on plaintiff’s deliberate

indifference claims.

      Plaintiff first claims that parole officials Russell, Terrasas and Romero

conspired to supply false information in order to revoke his parole. 1 Plaintiff

does not allege that his parole revocation was reversed, declared invalid or

otherwise called into question. Therefore, his § 1983 claim is barred. See Crow

v. Penry, 102 F.3d 1086, 1087 (10th Cir. 1996) (citing Heck v. Humphrey, 512

U.S. 477 (1994)). We note that plaintiff’s claim raised here that his rights under

state law were violated by delays in the parole revocation hearings was rejected in

a previous appeal. See Paul v. McFadin, No. 96-2214, 1997 WL 407843 (10th

Cir. July 21), cert denied, 118 S. Ct. 580 (1997).

      We turn to plaintiff’s claim that defendant Rugh was deliberately

indifferent to his serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104


1
      Even though these defendants are not named in the notice of appeal, we
have jurisdiction over them as appellees. See Mock v. T.G. & Y. Stores Co., 971
F.2d 522, 531 n.9 (10th Cir. 1992).

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(1976) (constitution protects prisoners from deliberate indifference to serious

medical needs). Plaintiff alleges that defendant Rugh, the prison health

administrator, countermanded his physician’s order for a back brace. He further

contends that defendant Rugh failed to inform his prison work supervisors of his

medical restrictions, causing him to lose good time credits when he refused to

work because he was unable to perform the work he was assigned.

      We review the grant of summary judgment de novo, applying the same

standard as the district court. See Applied Genetics Int’l, Inc., v. First Affiliated

Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). “Summary judgment is

appropriate when there is no genuine dispute over a material fact and the moving

party is entitled to judgment as a matter of law.” Russillo v. Scarborough, 935

F.2d 1167, 1170 (10th Cir. 1991). We consider the record in the light most

favorable to the nonmoving party. See Deepwater Invs., Ltd. v. Jackson Hole Ski

Corp., 938 F.2d 1105, 1110 (10th Cir. 1991).

      On appeal, plaintiff claims (1) he was not permitted to cross-examine fully

the defendant and a defense witness, (2) defendant failed to comply with his

discovery requests, (3) the district court improperly used the Martinez report 2 to

resolve disputed facts, (4) genuine issues of disputed material facts preclude




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

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summary judgment, and (5) the district court refused to appoint counsel for

plaintiff.

       The magistrate judge held a hearing on defendant Rugh’s motion for

summary judgment. The record reflects no restriction on plaintiff’s ability to

adduce testimonial or documentary evidence at the summary judgment hearing.

To the contrary, the magistrate judge granted him wide latitude to present his

case. Plaintiff claims that he was prevented from presenting evidence of his

medical work restrictions, but the documents he sought to introduce in support

were admitted into evidence. See R. vol. III, at 76. As for his claim that he was

prejudiced by defendant Rugh’s failure to respond to his discovery requests, he

has made no showing of how the failure to provide discovery adversely affected

his ability to oppose summary judgment. See Jensen v. Redevelopment Agency,

998 F.2d 1550, 1554-55 (10th Cir. 1993) (no abuse of discretion to deny

extension of time for discovery where plaintiff failed to identify facts he believed

would be revealed by discovery). Accordingly, the district court did not abuse its

discretion in the conduct of the hearing or its management of discovery. See

United States v. Lampley, 127 F.3d 1231, 1238 (10th Cir. 1997) (evidentiary

rulings reviewed for abuse of discretion); Jensen, 998 F.2d at 1553 (denial of Fed.

R. Civ. P. 56(f) discovery motion reviewed for abuse of abuse of discretion).




                                         -4-
      Plaintiff is correct that a Martinez report may not resolve disputed issues of

fact, see Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992), and that

summary judgment may not be granted unless there exist no genuinely disputed

issues of material fact, see Fed. R. Civ. P. 56(c). However, a plaintiff’s failure

“to establish the existence of an element essential to [his] case, . . . on which [he]

will bear the burden of proof at trial,” will result in a determination that there

exists no genuine dispute over material facts. Celotex Corp. v. Catrett, 477 U.S.

317, 322-23 (1986).

      Here, plaintiff alleged that his physician prescribed a back brace, but

defendant Rugh refused to order one. The physician changed his initial opinion

that plaintiff needed a back brace, and concluded that he did not need one. More

to the point, defendant Rugh did not have the authority to override the physician’s

decision whether to order a back brace for plaintiff. See R. vol. III, at 6, 20-21.

Plaintiff did not present evidence that defendant Rugh’s actions resulted in the

denial of a back brace prescribed by his physician, a showing required to defeat

summary judgment.

      In response to plaintiff’s allegations that defendant Rugh failed and refused

to provide information of his medical restrictions to prison job supervisors,

defendant Rugh testified that medical work restrictions were written by the

inmate’s physician. See id. at 11. Defendant Rugh further testified that he was


                                          -5-
not responsible for disseminating those orders, and he did not interfere with the

delivery of plaintiff’s medical restriction orders. See id. at 10-12. Plaintiff

points to no admissible evidence to refute defendant Rugh’s position that he was

not involved in the procedures that plaintiff alleges violated his rights.

Accordingly, because plaintiff failed to establish an essential element of his case,

i.e., that defendant Rugh personally participated in the injurious conduct, see

Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993) (no liability under § 1983

unless defendant was personally involved in deprivation of plaintiff’s rights),

summary judgment was appropriate.

      Finally, plaintiff asserts that the district court should have appointed

counsel for him. “‘There is no constitutional right to appointed counsel in a civil

case.’” United States v. Gosnell, 961 F.2d 1518, 1521 (10th Cir. 1992) (quoting

Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir. 1989)). Upon review of all of

the materials submitted in this case, we conclude that the district court did not err

in refusing to appoint counsel.




                                          -6-
      This appeal is frivolous or fails to state a claim under 28 U.S.C.

§ 1915(e)(2)(B) for purposes of counting “prior occasions” under 28 U.S.C.

§ 1915(g). The appeal is DISMISSED. The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    James E. Barrett
                                                    Senior Circuit Judge




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