Richard Delon Day v. Kimberly Emery ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 06-2123
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Richard Delon Day, Jr., *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Kimberly Emery, Dental Assistant, *
North Central Unit, ADC; Cass Cherry, * [UNPUBLISHED]
Medical Administrator, North Central *
Unit, ADC, originally sued as Cash *
Cherry; Thomas Bailey, Dr., North *
Central Unit, ADC, originally sued as *
T. Bailey; Correctional Medical *
Services; John Does, (1-5), *
*
Appellees. *
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Submitted: June 15, 2007
Filed: June 20, 2007
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Before WOLLMAN, MURPHY, and BYE, Circuit Judges.
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PER CURIAM.
Arkansas inmate Richard Delon Day, Jr., appeals the district court’s1 order
dismissing his 42 U.S.C. § 1983 action following an evidentiary hearing. Because
Day did not make a jury demand, we review the district court’s factual findings for
clear error and its conclusions of law de novo. See Choate v. Lockhart, 7 F.3d 1370,
1373 n.1 (8th Cir. 1993). Contrary to Day’s suggestions on appeal, the district court
was entitled to discount some of his testimony and accept the testimony of others, see
Estate of Davis v. Delo, 115 F.3d 1388, 1394 (8th Cir. 1997) (credibility
determinations are uniquely within fact finder’s province); and we conclude the court
did not err in rejecting Day’s deliberate-indifference and negligence claims, see
Alberson v. Norris, 458 F.3d 762, 765 (8th Cir. 2006) (to prevail on Eighth
Amendment claim, plaintiff must show more than gross negligence). We further
conclude that Day’s evidence fell short of establishing an equal protection violation,
see Murphy v. Mo. Dep’t of Corr., 372 F.3d 979, 984 (8th Cir. 2004) (to prevail on
equal protection claim, inmate had to show that he was treated differently than
similarly situated classes of inmates, and that differing treatment burdened one of his
fundamental rights and bore no rational relationship to legitimate penal interest), or
a breach of contract on the part of Correctional Medical Services.
Accordingly, we affirm. See 8th Cir. R. 47B.
________________________________
1
The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, adopting the report and recommendations of the
Honorable H. David Young, United States Magistrate Judge for the Eastern District
of Arkansas.
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