                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         DEC 3 1999
                                  TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                             Clerk

 BRIAN DALE DUBUC,

          Plaintiff-Appellant,
 v.                                                    No. 99-5107
 SATAYABAMA JOHNSON, sued as:                   (D.C. No. 96-CV-430-BU)
 Dr. Johnson of the Tulsa County Jail;                 (N.D.Okla.)
 NURSE ROSE; NURSE LINDA;
 DOYLE EDGE, Sgt.; EARL
 McCLAFLIN, sued as: Corporal
 McLoughlon; DIANA JANE COOK,
 sued as: Corporal Cook; ZACHARY J.
 VIERHELLER, sued as: Detention
 Officer Zack Veirhiller; OFFICER
 WARREN, detention officer;
 OFFICER SHAWN, detention officer;
 WENCESLAO AGUILA, sued as:
 detention officer Aguila; OFFICER
 MARTAIN, detention officer;
 STANLEY GLANZ, Sheriff Tulsa
 County; RON ISAAC, also known as
 Ron Isman,

          Defendants-Appellees.


                             ORDER AND JUDGMENT        *




      *
       This order and judgment is not binding precedent, except under the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.
Before ANDERSON, KELLY 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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Brian Dubuc appeals the district court’s grant of summary judgment to

defendants in his 42 U.S.C. § 1983 action        and seeks to proceed on appeal in

forma pauperis. We grant leave to proceed in forma pauperis, affirm in part,

reverse in part, and remand.

       Dubuc was held as a pretrial detainee in the Tulsa, Oklahoma, County Jail.

His § 1983 action alleged unconstitutional conditions of confinement, inadequate

health care, excessive use of force by officers, physical attacks by prisoners, and

disciplinary segregation without a due process hearing.

                                            I.

       Dubuc first contends the district court erred in denying him leave to amend

his complaint. Dubuc sought to add allegations of conduct that occurred after the

complaint was filed and to name additional defendants. The district court noted

that Dubuc’s motion to amend came almost seven months after defendants’

motions for summary judgment. We cannot say the district court’s denial

constituted an abuse of discretion.   See Viernow v. Euripides Dev. Corp.      , 157

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F.3d 785, 799 (10th Cir. 1998).

                                          II.

       Dubuc next contends the district court erred in dismissing part of his

complaint. The court properly dismissed his Eighth Amendment claims because

he was a pretrial detainee.   See Lopez v. LeMaster , 172 F.3d 756, 759 n.2 (10th

Cir. 1999) (“Pretrial detainees are protected under the Due Process Clause rather

than the Eighth Amendment.”).

       The district court also dismissed Dubuc’s case against medical defendants

Isaac, Johnson, Rodriguez, and Russell because Dubuc’s allegations against them

did not rise to the level of deliberate indifference. To state a claim, Dubuc must

allege “acts or omissions sufficiently harmful to evidence deliberate indifference

to serious medical needs.”    Estelle v. Gamble , 429 U.S. 97, 106 (1976). After

reviewing the record, we conclude Dubuc failed to state a claim against the

medical defendants.    See Realmonte v. Reeves , 169 F.3d 1280, 1283 (10th Cir.

1999) (“In reviewing a motion to dismiss, we accept the well-pleaded allegations

of the complaint as true and construe them in the light most favorable to the non-

moving party.”).

                                          III.

       Dubuc argues the district court erred in refusing to appoint counsel for

him. The court denied his request for counsel after “reviewing the merits of


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[Dubuc’s] case, the present procedural posture of the case, the nature of the

factual issues involved, [Dubuc’s] ability to investigate the crucial facts, the

probable type of evidence, [Dubuc’s] capability to present his case, and the

complexity of the legal issues.” Record Doc. 59 at 6. After reviewing the

record, we find that the district court did not abuse its discretion in not

appointing counsel for Dubuc.     See Rucks v. Boergermann , 57 F.3d 978, 979

(10th Cir. 1995).

                                           IV.

      Dubuc also asserts the district court erred in denying his request for

discovery. Federal Rule of Civil Procedure 56(f) allows a district court to order

discovery when the affidavits of a party indicate that the party “cannot . . .

present by affidavit facts essential to justify the party’s opposition [to summary

judgment].” After reviewing the record, we conclude the district court did not

abuse its discretion in denying Dubuc’s request for discovery.    Building and

Const. Dept. v. Rockwell Intern. Corp.    , 7 F.3d 1487, 1496 (10th Cir. 1993).

                                           V.

      The district court granted summary judgment to defendants on Dubuc’s

remaining claims. We review the district court’s grant of summary judgment de

novo, viewing the evidence and all reasonable inferences derived therefrom in

the light most favorable to the nonmoving party.     See Kidd v. Taos Ski Valley,


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Inc. , 88 F.3d 848, 851 (10th Cir. 1996).

       Dubuc contends the district court erred in deciding the credibility of

witnesses in granting summary judgment. The court noted “it is not possible to

know precisely what happened without adjudging the credibility of the two

differing versions” of the story, but used the absence of evidence of physical

harm to conclude there was no evidence of excessive force. Record Doc. 53 at

17. It is inappropriate for a court to weigh credibility on a motion for summary

judgment. This court has found that physical injury is not required to prove the

use of excessive force.   Martin v. Board of County Comm’rs   , 909 F.2d 402, 406-

07 (10th Cir. 1990). Therefore, the district court erred in using lack of physical

injury as a basis to grant summary judgment on Dubuc’s excessive force claims.

The district court refused to consider Dubuc’s newly discovered evidence of a

witness to the incident because it did not affect the court’s conclusion that Dubuc

failed to prove he had suffered any physical injury. As we have concluded the

court’s reliance upon the absence of evidence of physical harm was erroneous,

the court also erred when it relied upon the same rationale in rejecting Dubuc’s

newly discovered evidence. The court should reconsider that ruling upon

remand.

       The district court granted summary judgment to defendants on Dubuc’s

condition of confinement claims, finding Dubuc did not establish the existence of


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a condition that would amount to punishment or otherwise constitute an

unconstitutional condition of confinement. The court granted summary judgment

on Dubuc’s claim of lack of personal safety, finding no evidence that defendants

disregarded any known risk to Dubuc. After reviewing the entire record before

us, including the district court’s detailed order filed October 9, 1997, we

conclude that Dubuc failed to establish these claims.

      In regard to his procedural due process claims, Dubuc argues that the issue

of whether defendants had qualified immunity was a question for the jury. The

district court found defendants were protected by qualified immunity because

Dubuc did not show they had violated “clearly established . . . constitutional

rights of which a reasonable person would have known.”     Harlow v. Fitzgerald ,

457 U.S. 800, 818 (1982). Dubuc does not attack the substance of the district

court’s finding that whether a pretrial detainee was entitled to procedural due

process for disciplinary confinement was not clearly established. Whether the

law was clearly established is a legal question, not appropriate for jury review.

The district court did not err in granting summary judgment on Dubuc’s

procedural due process claims.

                                         VI.

      The district court denied Dubuc’s motion for leave to proceed on appeal in

forma pauperis under 28 U.S.C. § 1915(g), finding Dubuc had brought three prior


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civil actions that were dismissed as frivolous or malicious or for failure to state a

claim. However, the court erred in counting Dubuc’s appeal in     Dubuc v. City of

Tulsa , No. 97-CV-650-B (N.D. Okla. 1998), because that appeal was pending

when Dubuc filed his notice of appeal in this case,   see Dubuc v. City of Tulsa ,

1999 WL 668823 (10th Cir. 1999).       See Jennings v. Natrona County Detention

Center Med. Facility , 175 F.3d 775, 780 (10th Cir. 1999) (finding that

unexhausted proceedings are not counted for purposes of § 1915(g)). The district

court erred in denying Dubuc leave to proceed on appeal in forma pauperis under

§ 1915(g).

      Dubuc’s motion to proceed on appeal in forma pauperis is GRANTED.

Defendants’ motion to dismiss the appeal is DENIED. The decision of the

district court is AFFIRMED IN PART and REVERSED AND PART, and this

matter is REMANDED for further proceedings on Dubuc’s excessive force claim.

                                                Entered for the Court

                                                Mary Beck Briscoe
                                                Circuit Judge




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