UNITED STATES COURT OF APPEALS
Filed 12/18/95
TENTH CIRCUIT
GORDON R. REUELL, JR., )
)
Plaintiff-Appellant, )
) No. 95-1335
v. ) (D.C. No. 94-K-2013)
) (D. Colo.)
ROBERT J. FURLONG, LCF; D. LAWSON, )
Dir. Med. Serv.; ROLAND HANNON, P.A.; )
JOHN HUNSTED, P.A.; A.W. ZAVARAS, )
Dir. DOC; BEN GRIEGO; R. CARTER, Capt.; )
J. MARTINDALE, Lt.; G.J. GAYLORD, Lt.; )
SGT. COMPTON; J. BOWKER, )
)
Defendants-Appellees. )
ORDER AND JUDGMENT*
Before SEYMOUR, Chief Judge, McKAY and HENRY, 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); 10th Cir. R. 34.1.9. The cause 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This order and judgment is not binding precedent, except under the doctrines of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 the court’s General Order filed November 29, 1993. 151
F.R.D. 470.
Gordon R. Reuell, Jr. appeals the district court’s dismissal of his civil rights action.
We affirm.
Mr. Reuell is incarcerated at Limon Correctional Facility, a facility in the Colorado
Department of Corrections. His allegations of civil rights violations are diverse, but they
primarily implicate the Eighth Amendment. Mr. Reuell contends that his medical status
was incorrectly changed, requiring him to work in the kitchen; that he was improperly
moved from a single to a double cell; that he was celled with a smoker; that his oxygen
equipment, which he must use to breathe at night, was effectively denied him because a
refill was not ordered; that he was denied needed medication and special shoes. He also
asserts that defendants variously retaliated against him.1 He seeks money damages as
well as injunctive relief.
On appeal, Mr. Reuell argues that significant questions of fact should have
precluded a grant of summary judgment. The burden he must meet has been delineated in
several Supreme Court opinions. “‘After incarceration, only the “unnecessary and
wanton infliction of pain” . . . constitutes cruel and unusual punishment forbidden by the
Eighth Amendment.’ . . . It is obduracy and wantonness, not inadvertence or error in
good faith, that characterize the conduct prohibited by the Cruel and Unusual
1
On appeal, Mr. Reuell also maintains, inter alia, that he was denied access to
medical records. As this argument was not raised below, we decline to reach it. Oyler v.
Allenbrand, 23 F.3d 292, 299 n.8 (10th Cir. 1994). Nor do we reach any other new
arguments or consider new evidence provided to us for the first time on appeal in Mr.
Reuell’s several supplemental filings.
-2-
Punishments Clause . . . .” Whitley v. Albers, 475 U.S. 312, 319 (1986) (quoting
Ingraham v. Wright, 430 U.S. 651, 670 (1977)). See also Estelle v. Gamble, 429 U.S. 97
(1976); Wilson v. Seiter, 501 U.S. 294 (1991); Helling v. McKinney, 113 S. Ct. 2475
(1993).
After a thorough consideration of the record, it is apparent that Mr. Reuell’s
allegations cannot constitute a violation of the Eighth Amendment. Although Mr. Reuell
summarily claims that this standard has been met, he has not provided any support for his
assertions. In the proceedings below, defendants supplied convincing explanations of the
events surrounding many of Mr. Reuell’s claims. For the most part, Mr. Reuell simply
labels these explanations as deception. To the extent that he identifies alleged mistakes in
defendants’ explanations of the events, these discrepancies do not meet the burden
required to show an Eighth Amendment violation.2
We AFFIRM substantially for the reasons given by the magistrate in his
Recommendation filed July 19, 1995, as amended by the District Court in its July 25,
1995 Order of Dismissal.. The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephanie K. Seymour
Chief Judge
2
Insofar as Mr. Reuell’s allegations might be read as setting out a claim for the
violation of his Sixth Amendment rights of access to the courts, they are conclusory and
unsupported by the evidence.
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