                                                                            F I L E D
                                                                     United States Court of Appeals
                                                                             Tenth Circuit
                                       PUBLISH
                                                                            MAR 14 1997
                 IN THE UNITED STATES COURT OF APPEALS
                                                                        PATRICK FISHER
                                                                                 Clerk
                            FOR THE TENTH CIRCUIT


RICKKE L. GREEN, also known as                        )
Rickke Leon Green,                                    )
                                                      )
                    Plaintiff-Appellant,              )
                                                      )
v.                                                    )            No. 95-7075
                                                      )
CHARLIE BRANSON, Sergeant, OSP;                       )
PATRICK MCCOY, Correctional Officer I,                )
OSP; DON CUNNINGHAM, Sergeant, OSP;                   )
DENNIS BRANCH, Lieutenant, OSP; DAN                   )
REYNOLDS, Warden, OSP; MILTON VOGT,                   )
Dr., Medical Doctor, OSP; J. ROBERT DILLE,            )
Medical Director, DOC,                                )
                                                      )
                    Defendants-Appellees.             )



           APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF OKLAHOMA
                          (D.C. No. 93-592-B)


Submitted on the briefs:

Rickke L. Green, Plaintiff-Appellant, Pro Se; Louis W. Bullock, Patricia W. Bullock, and
Michele T. Gehres of Bullock & Bullock, Tulsa, Oklahoma, for Plaintiff-Appellant.

W. A. Drew Edmondson, Attorney General of Oklahoma, Wellon B. Poe, Assistant
Attorney General, and Charles K. Babb, Assistant Attorney General, Oklahoma City,
Oklahoma, for Defendants-Appellees.
Before PORFILIO, HOLLOWAY, and BRISCOE, Circuit Judges.



HOLLOWAY, Circuit Judge.



       Plaintiff-appellant Rickke L. Green appeals from the district court's grant of

summary judgment against him on his 42 U.S.C. § 1983 claims for damages, declaratory

and injunctive relief against the warden, physicians and guards employed at the

Oklahoma State Penitentiary for an alleged prison beating and wrongful medical

treatment of him in 1993. He also appeals the district court's denial of his motion for a

Fed. R. Civ. P. 35 medical examination and his motion for recusal of the magistrate judge

who recommended findings and a disposition in this case. We affirm in part, reverse in

part and remand.

       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.

                                             I

       During the events in question, Green was an inmate in the Oklahoma State

Penitentiary at McAlester, Oklahoma. Some time during the morning of June 2, 1993, a fight

broke out between Green and several prison guards while he was being escorted from the


                                             2
yard to the cell block. App. at Ex. 3 (verified complaint at 2). The cause of the fight is in

dispute. According to Green, he was seeking legal information from another inmate when

Sgt. Charlie Branson, a prison guard, became impatient without justification and struck him

across the back with a nightstick. Id. According to Branson, however, Green precipitated

the altercation by hitting him above the left eye with handcuffs and falling on top of him.

App. at Ex. 24 (affidavit of C.R. Branson).

       Green claims that Officer Patrick McCoy and Sgt. Don Cunningham, two other prison

guards, then ran over and that the three guards kicked, stomped, and punched him, twisted

his knee, and struck him with the sticks. He claims that Lt. Dennis Branch, a supervisor, ran

over and told the other three to stop the beating. However, Branch and the other guards

dragged him by his handcuffs to his cell. App. at Ex. 3 (verified complaint at 3-4). The

guards dispute Green's version of the facts and assert that they merely used the minimum

amount of force necessary to subdue Green after he attacked Branson. App. at Ex. 24

(affidavits of Branson, Cunningham, and McCoy).

       Once in his cell, Green asked for medical attention. He alleges that Warden Dan

Reynolds was aware that he had been beaten but took no action. App. at Ex. 3. He also

claims that he was beaten so severely he could not lie down on a stretcher and had to walk,

one painful step at a time, until a wheelchair was brought for him. Id.

       Dr. Milton Vogt was a prison physician who treated Green. According to Green,

Dr. Vogt refused to treat his injuries and falsified medical documents to help cover up the


                                              3
beating. Although Vogt sent Green to be x-rayed and examined, Green claims he was never

examined. Id. Vogt, on the other hand, claims that Green was not seriously injured. App.

at Ex. 24 (affidavit of Dr. Vogt).

       Subsequent to these alleged injuries and constitutional violations, Green was

transferred to federal custody and we are now advised he has been released from prison and

is free. Brief of Appellant Rickke L. Green filed September 4, 1996, at 9; Supplemental

Brief of Appellees filed October 17, 1996, at 3.

                                              II

       First, we address the issue of mootness. Since he has been transferred from state

custody to federal custody and has been released, Green concedes that his claim for

injunctive relief against state employees is moot. However, he argues that he is still entitled

to proceed on his declaratory relief claim because he has a live controversy relating to his

claim for damages for past injury. Defendants argue that since Green would have to prove

a deprivation of his civil rights to obtain damages, the declaratory relief action is

unnecessary.

       In Cox v. Phelps Dodge Corp., 43 F.3d 1345 (10th Cir. 1994), this court succinctly

outlined the mootness inquiry applicable to claims for injunctive and declaratory relief:

              Article III’s requirement that federal courts adjudicate only cases and
       controversies necessitates that courts decline to exercise jurisdiction where the
       award of any requested relief would be moot--i.e. where the controversy is no
       longer live and ongoing. Lewis v. Continental Bank Corp., 494 U.S. 472,
       477-78 (1990). The touchstone of the mootness inquiry is whether the
       controversy continues to “touch[ ] the legal relations of parties having adverse

                                              4
       legal interests” in the outcome of the case. DeFunis v. Odegaard, 416 U.S.
       312, 317 (1974) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300
       U.S. 227, 240-41 (1937)). This “legal interest” must be more than simply the
       satisfaction of a declaration that a person was wronged. Ashcroft v. Mattis,
       431 U.S. 171, 172-73 (1977) (per curiam) (holding that a claim for declaratory
       relief is moot when no “present right” is involved and the primary interest is
       the emotional satisfaction from a favorable ruling).

              It is well established that what makes a declaratory judgment action “a
       proper judicial resolution of a ‘case or controversy’ rather than an advisory
       opinion--is [ ] the settling of some dispute which affects the behavior of the
       defendant toward the plaintiff.” Hewitt v. Helms, 482 U.S. 755, 761 (1987);
       see also Rhodes v. Stewart, 488 U.S. 1, 4 (1988) (per curiam) (explaining that
       as the plaintiffs are no longer in prison, their case against prison officials is
       moot). Hence, this court has explained that a “plaintiff cannot maintain a
       declaratory or injunctive action unless he or she can demonstrate a good
       chance of being likewise injured [by the defendant] in the future.” Facio v.
       Jones, 929 F.2d 541, 544 (10th Cir.1991).

Id. at 1348. We are mindful of F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir. 1995), in

which we stated that a declaratory relief claim was not moot where it required "the court to

determine whether a past violation occurred." However, considering both Valdez and Cox,

and the fact that here declaratory relief would be superfluous in light of the damages claim,

we are of the view that Cox is the case more applicable to the facts of this case.

       Applying these principles to the case at bar, Green's claims for declaratory and

injunctive relief are moot. Since he is no longer a prisoner within the control of the ODC,

the entry of a declaratory judgment in Green’s favor would amount to nothing more than a

declaration that he was wronged, and would have no effect on the defendants’ behavior

towards him. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993) (inmate’s suit for

declaratory judgment as to whether correctional officers violated his constitutional rights by

                                              5
opening his privileged mail outside his presence was rendered moot by inmate’s release from

prison); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (prisoner’s claims for

injunctive and declaratory relief concerning prison conditions were moot where prisoner had

been moved to another prison unit); McKinnon v. Talladega County, 745 F.2d 1360, 1363

(11th Cir.1984) (holding that a prisoner’s transfer to a different jail moots his claim for

declaratory and injunctive relief even when prisoner argues that “there is no assurance that

he will not be returned to the [first] jail”); Inmates v. Owens, 561 F.2d 560, 562 (4th Cir.

1977) (when a prisoner is released from prison, there is no longer a substantial controversy

between the former inmate and prison officials of sufficient immediacy and reality to warrant

the issuance of either injunctive or declaratory relief). Likewise, the entry of injunctive relief

in Green’s favor would have no effect on the defendants’ behavior. See White v. State, 82

F.3d 364, 366 (10th Cir. 1996) (holding that inmate plaintiff’s claims for injunctive relief

were mooted by his release from incarceration). In contrast, Green's claims for damages

would remain viable because a judgment for damages in his favor would alter the defendants'

behavior by forcing them to pay an amount of money they otherwise would not have paid.

See Farrar v. Hobby, 506 U.S. 103, 112-13 (1992).

                                               III

       Next, we turn to the merits of Green's claims. His complaint filed August 11, 1993,

alleged deprivation of his civil rights based on the use of excessive force by Branson,

Cunningham, McCoy and Branch, deliberate indifference and failure to supervise by Warden


                                                6
Reynolds in connection with the excessive force claim, and deliberate indifference to serious

medical needs by Dr. Vogt and Dr. Dille.

                                              A

       We begin with the excessive force claim. A prison guard's use of force is not a

violation of the Eighth Amendment if it is only "applied in a good faith effort to maintain or

restore discipline," as opposed to being applied "maliciously or sadistically for the very

purpose of causing harm." Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson

v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973) (Friendly, J.)). In Albers, the Court indicated

that review of a claim of the use of excessive force in a prison is to be deferential to the

prison, and "that neither the judge nor jury [may] freely substitute their judgment for that of

officials who have made a considered choice." Id. at 322:

       Unless it appears that the evidence, viewed in the light most favorable to the
       plaintiff, will support a reliable inference of wantonness in the infliction of
       pain under the standard we have described, the case should not go to the jury.

Id.

       Viewing the evidence in the light most favorable to Green as we must in reviewing

this summary judgment, Bingaman v. Kansas City Power & Light Co., 1 F.3d 976, 980

(10th Cir. 1993), a rational jury could find that Branson, Cunningham, McCoy, and Branch

inflicted serious injury on him wantonly. The record contains ample evidence that, if

believed by the trier of fact, would show that Green did not provoke the use of force. Lonnie

Parks, another inmate, states in his affidavit:


                                                  7
       Sgt. Branson then ran up behind GREEN and shoved GREEN to the ground.
       Sgt. Branson then leaped on GREEN and started beating GREEN insanely.
       Cunningham and McCoy jumped on GREEN too. Together, they beat,
       stomped, kicked, and struck GREEN in his face, stomach, back, and leg areas
       with their fist, feet, and the blackstick, as GREEN laid helpless in handcuffs
       and leg-irons. I personally saw Cunningham twisting GREEN's feet and
       Branson striking GREEN with the blackstick. I also aver that I saw Lt. Branch
       race to the yard yelling "Stop it! Stop it!", over and over. Lt. Branch saw his
       officers beating GREEN. I aver that I then saw the officers pick GREEN up
       by his handcuffs and leg-irons and drag him away from the yard area. . . .

App. at Ex. 39, Ex. 1 at 2-3 (affidavit of Parks).

       Parks also states in his affidavit that Green did not provoke the attack, id.,and that "I

personally saw Sgt. Branson, and Sgt. Branson did not have an injury to the forehead nor was

he bleeding from the forehead." Id. This observation is corroborated by Rucker, another

inmate. Id. (affidavit of Stacy Rucker) ("I saw Sgt. Branson and can personally testify that

there was no gash or cut over his eye."); see also id. (affidavit of Jose Rideout) (same).

These affidavits support Green's account of the incident, which is set forth in his verified

complaint,1 and they contradict the accounts of the guards, who all allege that Green struck

Branson and caused a cut above his eye. See App. at Ex. 24 (affidavits of Branson,

Cunningham, and McCoy).

       Whether or not Green provoked the incident is a material fact since that is the basis

which the guards relied on in using force to subdue Green. The alleged excessive force claim




       1
         As Green's complaint has been sworn to under penalty of perjury, we have treated
it as an affidavit. See Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991).

                                               8
before us must be judged under the standard of the Eighth Amendment. The parameters for

the standard were discussed in Whitley v. Albers, 475 U.S. at 320-21:

       Where a prison security measure is undertaken to resolve a disturbance, such
       as occurred in this case, that indisputably poses significant risks to the safety
       of inmates and prison staff, we think the question whether the measure taken
       inflicted unnecessary and wanton pain and suffering ultimately turns on
       "whether force was applied in a good faith effort to maintain or restore
       discipline or maliciously and sadistically for the very purpose of causing
       harm." Johnson v. Glick, 481 F.2d 1028, 1033 (CA2) (Friendly, J.),
       cert. denied sub nom John v. Johnson, 414 U.S. 1033 (1973). As the District
       Judge correctly perceived, "such factors as the need for the application of
       force, the relationship between the need and the amount of force that was used,
       [and] the extent of injury inflicted," 481 F.2d, at 1033, are relevant to that
       ultimate determination.

Id. at 320-21.

       Albers had involved the shooting of an Oregon prisoner during a riot. However, the

standard pronounced there was applied in Hudson v. McMillian, 503 U.S. 1 (1992), where

a prisoner alleged that his Eighth Amendment rights were violated by a beating he received

from two correctional officers -- circumstances similar to those alleged here by Green. In

Hudson the Court applied principles from Albers, inter alia, holding:

       In determining whether the use of force was wanton and unnecessary, it may
       also be proper to evaluate the need for application of force, the relationship
       between that need and the amount of force used, the threat "reasonably
       perceived by the responsible officials," and "any efforts made to temper the
       severity of a forceful response." Ibid. The absence of serious injury is
       therefore relevant to the Eighth Amendment inquiry, but does not end it.

503 U.S. at 7.




                                              9
       We are convinced that in light of the showing made by Green in opposition to the

summary judgment motion of defendants, substantial factual questions were raised. The

magistrate judge resolved the factual disputes about the incident and alleged injuries by

relying substantially on the factual determinations made in the "Special Report" prepared by

the Department of Corrections in accordance with Martinez v. Aaron, 570 F.2d 317, 319-20

(10th Cir. 1978) (en banc) (per curiam), and other cases to the same effect.2 Then the order

of the district judge granting summary judgment for defendants affirmed and adopted the

findings and recommendation of the magistrate judge, saying they were supported by the

record. Thus, the magistrate's and the district judge's rulings on the factual disputes actually

rested significantly on the Martinez report as well as the disputed affidavits of the

defendants.

       We have held that a "Martinez report is treated like an affidavit, and the court is not

authorized to accept the factual findings of the prison investigation when the plaintiff has

presented conflicting evidence." Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)

(emphasis added). Here Green's complaint was accompanied by a statement by Green made

under penalty of perjury, 28 U.S.C. § 1746, and thus may be treated as an affidavit. Hall, 935

F.2d at at 1111. Green's verified statements and the affidavits submitted supporting Green's

position present substantial factual disputes on the excessive force claim.



       2
        Martinez approved a district court's order requiring a state prison to produce a
written report summarizing its findings in prison litigation.

                                              10
       In sum, we hold that the evidentiary showings from both sides before us present clear

conflicts in the evidence on the Eighth Amendment excessive force claim against defendants

Branson, Cunningham, McCoy, and Branch, the guards involved. We therefore must reverse

the grant of summary judgment on Green's excessive force claim against the guards and

remand for resolution of the factual disputes by the trier of fact.

                                                B

       Next we address Green's claim that Reynolds, the warden of the prison, should be held

liable for Green's alleged mistreatment and deliberate lack of medical care following the

beating incident.3 Liability of a supervisor under § 1983 must be predicated on the

supervisor's deliberate indifference, rather than mere negligence. Langley v. Adams County,

Colo., 987 F.2d 1473, 1481 (10th Cir. 1993). To be guilty of "deliberate indifference, the

defendant must know he is "creating a substantial risk of bodily harm." Billman v. Indiana

Deptartment of Corrections, et al., 56 F.3d 785, 788 (7th Cir. 1995). To establish a

supervisor's liability under § 1983 Green must show that "an 'affirmative link' exists between

the [constitutional] deprivation and either the supervisor's 'personal participation, his exercise

of control or direction, or his failure to supervise.'" Meade v. Grubbs, 841 F.2d 1512, 1527

(10th Cir. 1988).



       3
         The sworn statements of Green in paragraphs 4, 62 and 63 of the Plaintiff's
Response and Memorandum in Opposition to Defendants' Motion to Dismiss, etc.,
App. Item 46, make a showing that Warden Reynolds was told of the attack on Green and
that he limited his review of the facts to the guards' incident reports.

                                               11
        Green's verified complaint, page 6, states that when Green had been returned to his

cell after the beating, Green observed and heard prisoners tell Warden Reynolds "about the

ruthless and vicious assault" and that Green had been beaten so badly he could not talk, that

Green thought his leg and ribs were broken, and that Reynolds needed to go up and see

Green. The complaint stated that Reynolds did not come to Green's cell and did nothing;

that had Warden Reynolds, being duly aware of the assaultive nature of the guards and the

denial of medical care by the staff, shown "anything but a lackadaisical attitude and/or

reaction to the instant incident" Green would have received proper medical care and

documentation of his injuries; that Reynolds displayed "deliberate indifference" to the badly

brutalized prisoner under his care and custody. The verified complaint said further that about

fifteen minutes later, the prison staff said Green was going to the infirmary, that he was

unable to lie down on the stretcher, and was finally taken by wheelchair to the infirmary.

        As with respect to the guards, we likewise are convinced that the district court erred

in granting summary judgment in favor of the warden on the claim against him in connection

with the alleged deliberate indifference to Green's medical needs. We feel there was a

showing of the warden's alleged deliberate indifference and of an affirmative link between

the constitutional deprivation and the warden's improper control and failure to supervise. See

Langley v. Adams County, Colorado, 987 F.2d 1481; and Meade v. Grubbs, 841 F.2d at

1527.




                                              12
                                             C

       Finally, we consider Green's claim against doctors Vogt and Dille for deliberate

indifference to medical needs. A medical staff's "deliberate indifference to serious medical

needs of prisoners" constitutes a violation of the Eighth Amendment. Estelle v. Gamble, 429

U.S. 97 (1976). However, "a complaint that a physician has been negligent in diagnosing or

treating a medical condition does not state a valid claim of medical mistreatment under the

Eighth Amendment." Id. at 106. Such medical malpractice does not constitute deliberate

indifference. Id. at 106. Nor does disagreement in medical judgment. Id. at 107.

       As we turn to Green's averments we must remember that his complaint appears to

have been prepared by him pro se. In such circumstances, "the court should construe his

pleadings liberally and hold the pleadings to a less stringent standard than formal pleadings

drafted by lawyers." Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Green

alleges that he was brought into the infirmary with numerous gashes and bruises, that he was

screaming in agony, and that he could not lie down. He claims that Dr. Vogt refused to treat

him. Although there is evidence to support Vogt's claim that Green exhibited no severe

injuries, see App. at Ex. 39 (affidavit of Milton Vogt, examination notes), Green's own

testimony, if believed, would show that Dr. Vogt failed to take any action with regard to the

injuries. Green alleges in his verified complaint:

       Defendant Vogt, seeing clear injuries, clear swelling, clear bleeding, clear
       indications of possible internal injuries, etc. stated nothing was wrong with
       plaintiff . . . . Defendant Vogt, notwithstanding the fact that plaintiff could
       have died from such injuries or could sustain permanent impairment or

                                             13
       disability from same, did immediately and promptly put a medical coverup and
       conspiracy in motion.

App. at Ex. 3. The gist of the alleged cover-up was that Vogt wrote in the medical records

that he was sending Green to the Emergency Room of the McAlester Regional Hospital for

examination and x-rays, but that Dr. Vogt surreptitiously directed the persons transporting

Green to take him for x-rays only and not for an examination. Id.

       Green states in his verified complaint that he suffered the following injuries as a result

of the beating: (1) "2-gashes to the back of the head near and around the brain area, bleeding

and in need of stitches"; (2) "scars and swelling on right side of face"; (3) "swollen left

eye"; (4) "left knee swollen, painful, unable to apply real pressure to it; bone protruding out

same"; (5) "back injury, excruciating pain . . . unable to lie on back at all"; (6) "stomach and

side injuries, excruciating pain, blood was coming up first two days, dark blood came up for

about a month and a half; could not eat solid food." App. at Ex. 3 at 8.

       We are persuaded that a showing of deliberate refusal to provide medical attention,

as opposed to a particular course of treatment, coupled with falsification of medical records

may give rise to an Eighth Amendment violation and is cognizable under 42 U.S.C. § 1983.

See Parnisi v. Colorado State Hospital, 992 F.2d 1223, 1993 WL 118860, at *2 (10th Cir.,

Apr. 15, 1993) (unpublished decision) (reversing a dismissal of an Eighth Amendment claim




                                              14
based on alleged refusal to treat brain and heart conditions with allegations of falsification

of medical data).4 In Parnisi we held:

       In the instant case, the appellant clearly alleges that the appellees have acted
       with deliberate indifference. Not only does he claim that the appellees have
       purposefully refused to treat his brain and heart condition, but he also claims
       that they have sought to cover-up their refusal to treat him by falsifying his
       medical records.

Id. at 2 (emphasis added). We feel that Green's evidentiary showing, including alleged

falsification of medical data, is within the parameters of Eighth Amendment "deliberate

indifference," involving plainly "deliberate" action and inaction of a culpable nature.

Therefore, the district court erred in granting summary judgment in favor of Dr. Vogt on

Green's deliberate indifference claim.

       With respect to J. Robert Dille, the medical director, however, we affirm the entry of

summary judgment against Green. The theory of liability against Dr. Dille is premised

essentially on his duties as the supervisor of Dr. Vogt and Green's disagreement with

Dr. Dille's denials that Green required medical care or was denied such care. We are

convinced that Dr. Dille was not shown to be liable under § 1983. "A supervisor is not liable

under section 1983 unless an 'affirmative link' exists between the [constitutional] deprivation

and either the supervisor's 'personal participation, his exercise of control or direction, or his




       See 10th Cir. R. 36.3 ("[A]n unpublished decision may be cited if it has
       4

persuasive value with respect to a material issue that has not been addressed in a
published opinion and it would assist the court in its disposition").

                                               15
failure to supervise.'" Meade, 841 F.2d at 1527. The evidentiary showing as to Dr. Dille did

not rise to the level required to show the medical director's liability.

                                              IV

       Next, we consider the denial of Green's Rule 35 motion for a medical examination.

We review this ruling for abuse of discretion. Coca Cola Bottling Co. v. Negron Torres, 255

F.2d 149, 153 (1st Cir. 1958).

       Fed. R. Civ. P. 35(a) states as follows:

       (a) Order for Examination. When the mental or physical condition
       (including the blood group) of a party or of a person in custody or under the
       legal control of a party, is in controversy, the court in which the action is
       pending may order the party to submit to a physical or mental examination by
       a suitably licensed or certified examiner or to produce for examination the
       person in the party's custody or legal control. The order may be made only on
       motion for good cause shown and upon notice to the person to be examined
       and to all parties and shall specify the time, place, manner, conditions, and
       scope of the examination and the person or persons by whom it is to be made.

       Here the district court's order ruling on the matter found that Green had moved for a

Rule 35 examination for medical treatment purposes, which was improper. App. Item 57 at

1-2. See Schlagenhauf v. Holder, 379 U.S. 104, 118-19 (1964) (stating application under

Rule 35 must show each condition for which examination is sought is genuinely in

controversy). The district court's ruling is supported by Green's Rule 35 motion, which

reveals that Green's primary purpose was to obtain medical care and to complain of deliberate

indifference to his serious medical needs, the demonstration of disputes and controversies




                                              16
over his medical condition appearing to be secondary. See App. at Ex. 5, ¶¶ 5 and 6.

Therefore the district court's ruling on this issue was not an abuse of discretion.



                                               V

       Green further contends that the district court failed to conduct a de novo review of the

magistrate judge's report, requiring reversal. We disagree. We assume that the district court

performed its review function properly in the absence of evidence to the contrary. Longmire

v. Guste, 921 F.2d 620, 623 (5th Cir.1991). Green has failed to show that the district court

did not conduct a de novo review. Therefore, we will not reverse the judgment on this basis.

                                              VI

       Further, Green contends that the district court erred in not ordering recusal of the

magistrate judge. To prevail on a motion under 28 U.S.C. § 144 to recuse a judge, the

litigant must file a timely and sufficient affidavit establishing that the judge has a personal

bias or prejudice. Similarly, to obtain disqualification under 28 U.S.C. § 455, a movant must

show that a reasonable person, knowing all the circumstances, would harbor doubts about

the judge's impartiality, Chitimacha Tribe of Louisiana v. Laws Co., 690 F.2d 1157, 1165

(5th Cir. 1982), and rumor, speculations, opinions and the like do not suffice. United States

v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993).

       Green's attempt to disqualify Magistrate Judge Payne was neither timely nor

sufficient. The record indicates that on September 26, 1994, Magistrate Judge Payne entered


                                              17
his "Finding and Recommendation." Green did not move to recuse until November 1, 1994,

and provides no explanation for why he waited so long to move for disqualification. Nor has

he provided any proper showing of personal bias or prejudice. In his motion before the

district court (which he references in his appellate brief), he states that "Magistrate Judge

Payne is therefore using his judicial office to assist Defendants in winning a multi-million

dollar civil rights lawsuit through pure and open fraud." App. Item 55 at 2. In essence,

Green complains of rulings against him by the magistrate. However, adverse rulings "cannot

in themselves form the appropriate grounds for disqualification." Green v. Dorrell, 969 F.2d

915, 919 (10th Cir. 1992).

       Therefore, the district court properly rejected Green's motion for the recusal of

Magistrate Judge Payne.

                                            VII

       The court appointed counsel for Green and ordered supplemental briefing on the

retroactivity and possible effect of the Prison Litigation Reform Act of 1996, Pub. L.

No. 104-134, 110 Stat. 1321-66. However, we have been advised that Green was transferred

from state custody to federal custody and that he has been released from custody and is free

from restraint of incarceration. Brief of Appellant Rickke L. Green filed September 4, 1996,

at 9. In that brief, Green argues that the Act may not be given retroactive effect and should

not be applied in this case. However, defendants in their supplemental brief on this statute

have not sought the application of any of the provisions of the Act in this case.


                                             18
       In light of these circumstances, we feel that the issues involving the Act are not ripe

for adjudication, particularly as Green raises a host of constitutional challenges to the Act.

See United Public Workers v. Mitchell, 330 U.S. 75, 90 n.22 (1947) (noting the Court's

practice "not . . . to decide any constitutional question in advance of the necessity for its

decision . . . or to decide any constitutional question except with reference to the particular

facts to which it is to be applied"). Therefore, as a reflection of "prudential considerations

defining and limiting the role of courts," see Warth v. Seldin, 422 U.S. 490, 517-18 (1975),

we feel we need not and should not address any issue under the Act in deciding this appeal.

                                             VIII

       Accordingly, we AFFIRM the district court's denial of Green's Rule 35 motion, the

denial of his motion to recuse Magistrate Judge Payne, and the entry of summary judgment

in favor of Dr. Dille on the Eighth Amendment issues. We DISMISS the declaratory

judgment and injunctive relief claims as moot. We REVERSE the entry of summary

judgment in favor of Officers Branson, McCoy, Cunningham and Branch, Warden Reynolds

and Dr. Vogt on the Eighth Amendment claims and REMAND for further proceedings.




                                              19
