108 F.3d 1296 (10th Cir. 1997), 95-7075, Green v. Branson

Docket Nº:95-7075.
Citation:108 F.3d 1296
Party Name:Rickke L. GREEN, also known as Rickke Leon Green, Plaintiff-Appellant, v. Charlie BRANSON, Sergeant, OSP; Patrick McCoy, Correctional Officer I, OSP; Don Cunningham, Sergeant, OSP; Dennis Branch, Lieutenant, OSP; Dan Reynolds, Warden, OSP; Milton Vogt, Dr., Medical Doctor, OSP; J. Robert Dille, Medical Director, DOC, Defendants-Appellees.
Case Date:March 14, 1997
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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108 F.3d 1296 (10th Cir. 1997)

Rickke L. GREEN, also known as Rickke Leon Green, Plaintiff-Appellant,


Charlie BRANSON, Sergeant, OSP; Patrick McCoy, Correctional

Officer I, OSP; Don Cunningham, Sergeant, OSP; Dennis

Branch, Lieutenant, OSP; Dan Reynolds, Warden, OSP; Milton

Vogt, Dr., Medical Doctor, OSP; J. Robert Dille, Medical

Director, DOC, Defendants-Appellees.

No. 95-7075.

United States Court of Appeals, Tenth Circuit

March 14, 1997

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[Copyrighted Material Omitted]

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Rickke L. Green, Plaintiff-Appellant, Pro Se; Louis W. Bullock, Patricia W. Bullock, and Michele T. Gehres of Bullock & Bullock, Tulsa, Oklahoma, for Plaintiff-Appellant.

W.A. Drew Edmondson, Attorney General of Oklahoma, Wellon B. Poe, Assistant Attorney General, and Charles K. Babb, Assistant Attorney General, Oklahoma City, Oklahoma, for Defendants-Appellees.

Before PORFILIO, HOLLOWAY, and BRISCOE, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiff-appellant Rickke L. Green appeals from the district court's grant of summary judgment against him on his 42 U.S.C. § 1983 claims for damages, declaratory and injunctive relief against the warden, physicians and guards employed at the Oklahoma State Penitentiary for an alleged prison beating and wrongful medical treatment of him in 1993. He also appeals the district court's denial of his motion for a Fed.R.Civ.P. 35 medical examination and his motion for recusal of the magistrate judge who recommended findings and a disposition in this case. We affirm in part, reverse in part and remand.

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 case is therefore ordered submitted without oral argument.


During the events in question, Green was an inmate in the Oklahoma State Penitentiary at McAlester, Oklahoma. Some time during the morning of June 2, 1993, a fight broke out between Green and several prison guards while he was being escorted from the yard to the cell block. App. at Ex. 3 (verified

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complaint at 2). The cause of the fight is in dispute. According to Green, he was seeking legal information from another inmate when Sgt. Charlie Branson, a prison guard, became impatient without justification and struck him across the back with a nightstick. Id. According to Branson, however, Green precipitated the altercation by hitting him above the left eye with handcuffs and falling on top of him. App. at Ex. 24 (affidavit of C.R. Branson).

Green claims that Officer Patrick McCoy and Sgt. Don Cunningham, two other prison guards, then ran over and that the three guards kicked, stomped, and punched him, twisted his knee, and struck him with the sticks. He claims that Lt. Dennis Branch, a supervisor, ran over and told the other three to stop the beating. However, Branch and the other guards dragged him by his handcuffs to his cell. App. at Ex. 3 (verified complaint at 3-4). The guards dispute Green's version of the facts and assert that they merely used the minimum amount of force necessary to subdue Green after he attacked Branson. App. at Ex. 24 (affidavits of Branson, Cunningham, and McCoy).

Once in his cell, Green asked for medical attention. He alleges that Warden Dan Reynolds was aware that he had been beaten but took no action. App. at Ex. 3. He also claims that he was beaten so severely he could not lie down on a stretcher and had to walk, one painful step at a time, until a wheelchair was brought for him. Id.

Dr. Milton Vogt was a prison physician who treated Green. According to Green, Dr. Vogt refused to treat his injuries and falsified medical documents to help cover up the beating. Although Vogt sent Green to be x-rayed and examined, Green claims he was never examined. Id. Vogt, on the other hand, claims that Green was not seriously injured. App. at Ex. 24 (affidavit of Dr. Vogt).

Subsequent to these alleged injuries and constitutional violations, Green was transferred to federal custody and we are now advised he has been released from prison and is free. Brief of Appellant Rickke L. Green filed September 4, 1996, at 9; Supplemental Brief of Appellees filed October 17, 1996, at 3.


First, we address the issue of mootness. Since he has been transferred from state custody to federal custody and has been released, Green concedes that his claim for injunctive relief against state employees is moot. However, he argues that he is still entitled to proceed on his declaratory relief claim because he has a live controversy relating to his claim for damages for past injury. Defendants argue that since Green would have to prove a deprivation of his civil rights to obtain damages, the declaratory relief action is unnecessary.

In Cox v. Phelps Dodge Corp., 43 F.3d 1345 (10th Cir.1994), this court succinctly outlined the mootness inquiry applicable to claims for injunctive and declaratory relief:

Article III's requirement that federal courts adjudicate only cases and controversies necessitates that courts decline to exercise jurisdiction where the award of any requested relief would be moot--i.e. where the controversy is no longer live and ongoing. Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400 (1990). The touchstone of the mootness inquiry is whether the controversy continues to "touch[ ] the legal relations of parties having adverse legal interests" in the outcome of the case. DeFunis v. Odegaard, 416 U.S. 312, 317, 94 S.Ct. 1704, 1706, 40 L.Ed.2d 164 (1974) (per curiam) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41, 57 S.Ct. 461, 463-64, 81 L.Ed. 617 (1937)). This "legal interest" must be more than simply the satisfaction of a declaration that a person was wronged. Ashcroft v. Mattis, 431 U.S. 171, 172-73, 97 S.Ct. 1739, 1740, 52 L.Ed.2d 219 (1977) (per curiam) (holding that a claim for declaratory relief is moot when no "present right" is involved and the primary interest is the emotional satisfaction from a favorable ruling).

It is well established that what makes a declaratory judgment action "a proper judicial resolution of a 'case or controversy' rather than an advisory opinion--is [ ] the

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settling of some dispute which affects the behavior of the defendant toward the plaintiff." Hewitt v. Helms, 482 U.S. 755, 761, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987); see also Rhodes v. Stewart, 488 U.S. 1, 4, 109 S.Ct. 202, 203-04, 102 L.Ed.2d 1 (1988) (per curiam) (explaining that as the plaintiffs are no longer in prison, their case against prison officials is moot). Hence, this court has explained that a "plaintiff cannot maintain a declaratory or injunctive action unless he or she can demonstrate a good chance of being likewise injured [by the defendant] in the future." Facio v. Jones, 929 F.2d 541, 544 (10th Cir.1991).

Id. at 1348. We are mindful of F.E.R. v. Valdez, 58 F.3d 1530, 1533 (10th Cir.1995), in which we stated that a declaratory relief claim was not moot where it required "the court to determine whether a past violation occurred." However, considering both Valdez and Cox, and the fact that here declaratory relief would be superfluous in light of the damages claim, we are of the view that Cox is the case more applicable to the facts of this case.

Applying these principles to the case at bar, Green's claims for declaratory and injunctive relief are moot. Since he is no longer a prisoner within the control of the ODC, the entry of a declaratory judgment in Green's favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him. See Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir.1993) (inmate's suit for declaratory judgment as to whether correctional officers violated his constitutional rights by opening his privileged mail outside his presence was rendered moot by inmate's release from prison); Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir.1985) (prisoner's claims for injunctive and declaratory relief concerning prison conditions were moot where prisoner had been moved to another prison unit); McKinnon v. Talladega County, 745 F.2d 1360, 1363 (11th Cir.1984) (holding that a prisoner's transfer to a different jail moots his claim for declaratory and injunctive relief even when prisoner argues that "there is no assurance that he will not be returned to the [first] jail"); Inmates v. Owens, 561 F.2d 560, 562 (4th Cir.1977) (when a prisoner is released from prison, there is no longer a substantial controversy between the former inmate and prison officials of sufficient immediacy and reality to warrant the issuance of either injunctive or declaratory relief). Likewise, the entry of injunctive relief in Green's favor would have no effect on the defendants' behavior. See White v. State, 82 F.3d 364, 366 (10th Cir.1996) (holding that inmate plaintiff's claims for injunctive relief were mooted by his release from incarceration). In contrast, Green's claims for damages would remain viable because a judgment for damages in his favor would alter the defendants' behavior by forcing them to pay an amount of money they otherwise would not have paid. See Farrar v. Hobby, 506 U.S. 103, 112-13, 113 S.Ct. 566, 573-74, 121 L.Ed.2d 494 (1992).


Next, we turn to the merits of Green's claims. His complaint filed August 11, 1993, alleged deprivation of his civil rights based on the use of excessive force by Branson, Cunningham, McCoy and Branch, deliberate indifference and failure to supervise by Warden Reynolds in connection with the excessive force claim, and deliberate indifference to serious medical needs by Dr. Vogt...

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