Byrd v. Wolff, 73-1672.

Decision Date22 January 1974
Docket NumberNo. 73-1672.,73-1672.
PartiesJames BYRD, Appellant, v. Charles L. WOLFF, Jr., Warden, Nebraska Penal Complex, Appellee.
CourtU.S. Court of Appeals — Eighth Circuit

James Byrd, pro se.

Clarence A. H. Meyer, Atty. Gen., and Harold S. Salter, Deputy Atty. Gen., Lincoln, Neb., for appellee.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.*


James Byrd commenced a civil rights action in November of 1972 in the United States District Court for the District of Nebraska. He alleged that he was being denied proper medical care by prison officials and was being refused outside medical care. He asked that the appellee be required to furnish him with outside medical care and that he be awarded one million dollars in damages for injuries sustained by him through the failure of the prison officials to provide proper medical attention. The trial court granted the appellee's motion for a summary judgment. It noted that Byrd had been discharged from the hospital on November 16, 1972, a few days after the suit was filed; and that on the date of dismissal, hospital medical personnel found that Byrd was not suffering from any mental or physical illness. A review of the records convinces us that the trial court properly granted the motion for summary judgment. See, Cates v. Ciccone, 422 F.2d 926, 928 (8th Cir. 1970). Compare, Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973).

We note that Byrd contends, for the first time on this appeal, that he had been confined in the "hole" without medical treatment for the last six months. This issue was not before the trial court at the time it granted appellee's motion for summary judgment, and we express no opinion with respect to the sufficiency or merits of the allegation.

* TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

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4 cases
  • Von Brimer v. Whirlpool Corp.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 24 Mayo 1976
    ...issues of fact" were not presented to the court below, and, as a general rule, this precludes appellate review. Byrd v. Wolff, 490 F.2d 1277, 1278 (9th Cir. 1974), DeBardeleben v. Cummings, 453 F.2d 320, 324 (5th Cir. 1972), 6 Moore's Federal Practice P 56.27(1), at The California Supreme C......
  • Long v. Insurance Co. of North America
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • 12 Marzo 1982
    ...yard sales. Further, since this argument was not made to the trial court we need not resolve it on appeal. See, e.g., Byrd v. Wolff, 490 F.2d 1277, 1278 (8th Cir. 1974); Adkins v. E.I. du Pont de Nemours & Co., 181 F.2d 641, 642 (10th Cir. ...
  • Hall v. Ashley, 79-1008
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 18 Octubre 1979
    ...1024 (8th Cir. 1975); Wilbron v. Hutto, 509 F.2d 621 (8th Cir. 1975); Freeman v. Lockhart, 503 F.2d 1016 (8th Cir. 1974); Byrd v. Wolff, 490 F.2d 1277 (8th Cir. 1974). Although it appears the jury found a constitutional wrong, the instruction as to verdict form number 2 and the overall form......
  • Wooten v. First National Bank of St. Paul, Minnesota
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • 1 Febrero 1974

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