Gordon v. Zavaras

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 22 2004
TENTH CIRCUIT
PATRICK FISHER
Clerk
LARRY GORDON,
Plaintiff-Appellant,
v. No. 04-1058
(D. Colorado)
TOL SCOTT; MICHAEL LIND; (D.C. No. 97-RB-1743(CBS))
JEFFREY HIJAR; DARWIN
THORNTON; ELIZABETH TAPER,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before KELLY, HENRY, and TYMKOVICH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to decide this case on the briefs without oral argument. See F ED . R.
A PP . P. 34(a) and 10 TH C IR . R. 34.1(G). The case is therefore ordered submitted
without oral argument.
*
This order and judgment is not binding precedent, except under the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 10 TH C IR . R. 36.3.
Larry Gordon appeals the jury verdict against him, contending (1)
ineffective assistance of counsel, (2) improper jury instructions, and (3) due
process violations resulting from perjured testimony and new evidence. We reject
Mr. Gordon’s appeal, holding that (1) he is not entitled to effective assistance of
counsel in a civil case; (2) the jury instructions did not raise any plain error; and
(3) Mr. Gordon can not show prejudice or a due process violation for the alleged
perjured testimony.
I. BACKGROUND
Larry Gordon, an inmate at the Limon Correctional Facility (“LCF”),
brought this suit pursuant to 42 U.S.C. § 1983 and the Religious Land Use and
Institutionalized Person Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. Mr. Gordon
alleged that in 1997, LCF kitchen workers dropped some meat on the floor,
picked it up, washed it off, reheated it, and served it to Muslim inmates during
Ramadan. When Mr. Gordon attempted to alert other inmates not to eat the meat,
Michael Lind, who was a correctional officer assigned to work in the kitchen,
allegedly threatened to write him up for a facility disruption. Mr. Gordon
exhausted the grievance process, and he alleged that Officers Hijar and Thornton
(also on kitchen assignment) labeled him a “rat” and a “buster” in front of other
inmates. He also alleges that the defendants attempted to instigate other inmates
who were members of the “Rolling 30 Crips” gang to attack him. Finally, Mr.
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Gordon alleged that defendant Elizabeth Taper, who was his case manager,
revoked a portion of his good time credits in retaliation for his filing grievances.
The district court dismissed several of Mr. Gordon’s claims, and only two
claims against five defendants went to trial before a jury: (1) an Eighth and
Fourteenth Amendment claim against defendants Scott, Lind, Hijar, and Thornton
for allegedly releasing information regarding Mr. Gordon’s criminal convictions
to other inmates, and referring to him as a “rat” in front of other prisoners, and
(2) a Fourteenth Amendment claim against defendant Taper for allegedly revoking
Mr. Gordon’s good time credits without a hearing. The jury decided these two
claims in favor of the defendants.
Mr. Gordon, proceeding pro se, appeals the jury verdict. He alleges (1)
violation of his Sixth Amendment right to effective assistance of counsel, (2)
improper jury instructions and (3) that new evidence and/or the presentation of
perjured testimony warrants a new trial. We reject each of these claims and
affirm the jury verdict.
II. DISCUSSION
A. Ineffective Assistance of Trial Counsel
The district court appointed attorney Michael Anderson to represent Mr.
Gordon in the proceeding below. To the extent Mr. Gordon claims he was denied
his constitutional right to effective assistance of counsel at trial, this right does
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not apply to civil trials. See MacCuish v. United States, 844 F.2d 733, 735 (10th
Cir. 1988). Mr. Gordon’s remedy for any alleged incompetence by his counsel is
through a malpractice action against counsel, not through any relief from the
judgment in this case. Id. at 735-36.
B. Jury Instructions
Mr. Gordon next contends that the district court’s instructions were
prejudicial in a variety of ways, including their purported omission of references
to deliberate indifference, the duty to protect prisoners, the individual and official
capacity of the defendants, danger creation, retaliation, and the omission of an
instruction regarding his theory of the case.
Mr. Gordon’s counsel did not object to the proffered instructions.
Reviewing the jury instruction under a plain error standard, we affirm the
substance of jury instructions. See United States v. Fabiano, 169 F.3d 1299, 1302
(10th Cir.1999) (“We review a jury instruction ... for plain error when no
objection was made [at trial].”). “Under that standard, we will affirm unless the
instructions were patently, plainly erroneous and prejudicial.” Greene v. Safeway
Stores, Inc., 210 F.3d 1237, 1245 (10th Cir. 2000) (internal quotation marks
omitted). We do not review any particular instruction in isolation; rather, we
“must view the [jury] instructions in their entirety. . . .” Coleman v. B-G Maint.
Mgmt. of Colo., Inc., 108 F.3d 1199, 1202 (10th Cir. 1997). We have reviewed
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the stipulated jury instructions, Mr. Gordon’s proposed jury instructions, the
defendants’ proposed jury instructions, and the substance of Mr. Gordon’s nearly
incomprehensible suggestions for instructions in this appeal. The district court’s
instructions were not prejudicial and there was no plain error.
3. Perjured Testimony and/or New Evidence
Mr. Gordon contends that the defendants presented perjured testimony that
prejudiced him. He maintains that Officer Scott’s testimony that he saw Officer
Lind throw the tainted meat into the trash was false because Officer Scott did not
work on the day in question. He also suggests that Officer Hijar stated he was on
“roving” patrol, but in fact Officer Hijar was only “working side one.” Aplt’s Br.
att. 2 at (I). Thus, surmises Mr. Gordon, “all of the officers and their attorney
used false testimony, and abused process, . . . violating . . . the due process
clause.” Id. at (I)-(II). Mr. Gordon does not explain how the above testimony
might have influenced the jury’s verdict, nor does he identify any newly
discovered that might be relevant to this case.
We are unable to review Mr. Gordon’s perjured testimony claim on appeal
because he did not provide a trial transcript. See F ED . R. A PP . P. 10(b)(2) (“If the
appellant intends to urge on appeal that a finding or conclusion is unsupported by
the evidence or is contrary to the evidence, the appellant must include in the
record a transcript of all evidence relevant to that finding or conclusion.”).
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Similarly, without more, we are unable to address the “new evidence” claim. See
also F ED . R. C IV . P. 60(b)(2) (party may seek relief from final judgment if it has
newly discovered evidence which due diligence would not have uncovered).
Finally, we note that in his reply brief, Mr. Gordon raises new yet
conclusory allegations for the first time. He alleges that since 1994, he has been
“subjected to torture of sleep deprivation, death threats, brainwashing,
intimidation, each and every night when [he] was tring [sic] to slepp [sic] in these
cells,” and that he “was singled out for this treatment” because of his race. Reply
Br. at (II). Particularly in light of Mr. Gordon’s failure to provide sufficient
factual support for these claims, we decline to consider them. See Riddle v.
Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (conclusory factual allegations
by pro se litigant are insufficient to state a claim on which relief can be based);
United States v. Mitchell, 783 F.2d 971, 975 (10th Cir. 1986) (issues not raised
before district court generally will not be considered on appeal).
II. CONCLUSION
For the reasons stated, we AFFIRM the district court’s judgment. We deny
Mr. Gordon’s motion to reopen the district court’s judgment, and his motion
requesting the appointment of counsel. We also deny Mr. Gordon’s motion to
proceed in forma pauperis as moot because the district court already granted such
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a motion. We remind Mr. Gordon that he is still obligated to make partial
payments until the entire balance of the appellate filing fee has been paid.
Entered for the Court,
Robert H. Henry
Circuit Judge
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