Keith Gary v. Bear Don't Walk , 32 F. App'x 171 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-2438
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Keith Gary, *
*
Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
Ernie Bear Don’t Walk; John Doe; Joe * [UNPUBLISHED]
Cosgrove; Debbie Nelson; David *
Corbo; David Crist, *
*
Appellees. *
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Submitted: March 1, 2002
Filed: April 1, 2002
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Before McMILLIAN, BOWMAN, and BYE, Circuit Judges.
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PER CURIAM.
Keith Gary brought this action under 42 U.S.C. § 1983, asserting federal claims
for failure to protect him from an inmate assault and denial of physical therapy for his
resulting injuries. He also asserted state law claims for assault and negligence. The
district court1 granted summary judgment in favor of defendants, and declined to
address the state law claims. Gary appeals.
Upon our de novo review, see Dulany v. Carnahan, 132 F.3d 1234, 1237 (8th
Cir. 1997), we affirm. The evidence before the district court did not present a
trialworthy issue on whether defendants consciously disregarded a substantial risk
that the assailant would attack Gary. To the extent Gary intended to appeal the denial
of his medical-care claim, it fails for lack of evidence that defendants were
deliberately indifferent to a serious medical need given that Gary received prompt and
continuing medical attention for his injuries, and ultimately was referred for physical
therapy.
Accordingly, we affirm. See 8th Cir. R. 47B. However, we clarify that the
dismissal of Gary’s related state law claims was without prejudice.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
1
The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable John M.
Mason, United States Magistrate Judge for the District of Minnesota.
-2-