Henry Daniels v. Michael J. Montgomery, Sgt. Charles Bickett , 909 F.2d 1482 ( 1990 )

909 F.2d 1482

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Henry DANIELS, Plaintiff-Appellant,
v.
Michael J. MONTGOMERY, SGT. Charles Bickett, Defendants-Appellees.

No. 89-6464.

United States Court of Appeals, Sixth Circuit.

Aug. 3, 1990.

1

Before KENNEDY and MILBURN, Circuit Judges, and HERMAN J. WEBER, District Judge.*

ORDER

2

The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the motion for appointment of counsel and briefs of the parties, this panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

3

Plaintiff filed a 42 U.S.C. Sec. 1983 civil rights complaint alleging that he was injured while stripping wax off floors without the use of rubber gloves and that he was not given proper medical attention. A jury found for the defendants and plaintiff appealed.

4

Prison authorities may be sued for deliberate indifference to the serious medical needs of prisoners. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Here plaintiff's medical needs were not proven to be serious. In order to constitute cruel and unusual punishment, such conduct must involve more than ordinary lack of due care for the prisoner's interests or safety. Whitley v. Albers, 475 U.S. 312, 319 (1986).

5

The plaintiff's allegation that the jury failed to weigh the evidence in his behalf is insufficient. Where there are two permissible views of the evidence, the factfinder's choice between them cannot be clearly erroneous. Bueno v. Mattner, 829 F.2d 1380, 1384 (6th Cir.1987), cert. denied, 486 U.S. 1022 (1988). The appellant's burden to meet this standard is not met by merely showing a conflict in testimony. Franklin v. Aycock, 795 F.2d 1253, 1257-58 (6th Cir.1986).

6

It is ORDERED that the motion for counsel be denied and the judgment of the district court be, and it hereby is, affirmed. Rule 9(b)(5), Rules of the Sixth Circuit.

*

The Honorable Herman J. Weber, U.S. District Judge for the Southern District of Ohio, sitting by designation