Gee v. Estes, Nos. 86-1176

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtBefore LOGAN and MOORE, Circuit Judges, and ROGERS; PER CURIAM
Citation829 F.2d 1005
PartiesDonald GEE, Plaintiff-Appellant, v. Bill ESTES, Sheriff of Natrona County, M.J. McCarthy, Lt. Deputy, Natrona County, D. Brewster, Sgt. Deputy, Natrona County, Paul Brown, Deputy, Mike Jones, Deputy, Tim Uler, Deputy, Rodger (last name unknown), and other deputies whose names are unknown of Natrona County, C. Lauderdale, J. Cooper of Casper Police Dept. Investigators, Defendants-Appellees.
Docket Number86-1397,Nos. 86-1176
Decision Date28 September 1987

Page 1005

829 F.2d 1005
Donald GEE, Plaintiff-Appellant,
v.
Bill ESTES, Sheriff of Natrona County, M.J. McCarthy, Lt.
Deputy, Natrona County, D. Brewster, Sgt. Deputy, Natrona
County, Paul Brown, Deputy, Mike Jones, Deputy, Tim Uler,
Deputy, Rodger (last name unknown), and other deputies whose
names are unknown of Natrona County, C. Lauderdale, J.
Cooper of Casper Police Dept. Investigators, Defendants-Appellees.
Nos. 86-1176, 86-1397.
United States Court of Appeals,
Tenth Circuit.
Sept. 28, 1987.

Page 1006

Donald Gee, pro se.

Cameron S. Walker of Schwartz, Bon, McCrary & Walker, Casper, Wyo., for defendants-appellees.

Before LOGAN and MOORE, Circuit Judges, and ROGERS, District Judge. *

PER CURIAM.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 34.1.8(c) and 27.1.2. The cause is therefore ordered submitted without oral argument.

Plaintiff, Donald Gee, is a federal prisoner, acting pro se and proceeding in forma pauperis, who commenced an action under 42 U.S.C. Sec. 1983 against a county sheriff and several other police officers working at the Natrona County, Wyoming jail during his incarceration there. Among other allegations, plaintiff asserted that he was beaten by all except one of the defendants; defendants opened and read or destroyed his legal mail; he suffered hypothermia seizures from being put naked in a cell with no blankets in below forty-degree temperatures, where he was viewed by several women; he was denied needed medical services; he was denied food, served dirty food, or his food was thrown on the floor where he was told to eat it like a dog; he was placed in a cell infested with lice; he was not allowed to shower for two weeks at a time; while in a seizure he was left naked in a padded cell with his head in human excrement; and he was dragged into court with no clothing on except an oversized pair of trousers which dropped to his knees to expose him to the spectators.

These allegations, or some of them, state a claim for Sec. 1983 relief, if they are supported by evidence. The district court denied plaintiff's motion for appointment of counsel but allowed limited discovery. Apparently cognizant of the special problems of a pro se plaintiff incarcerated in a federal maximum security prison in another state, the district court referred the matter to a magistrate for an evidentiary hearing "[i]n order for the Court to better determine whether the Plaintiff is able to establish a sound basis of facts for his allegations...." I R. 18. The court order directed the hearing to be conducted by telephone conference call, allowing plaintiff and defendants to testify under oath and to call witnesses on their behalf. The order directed the magistrate to tender findings and recommendations to the district court. The court later characterized the hearing as one "on probable cause." I R. 24.

Although the district court did not so specify, we construe the reference to a magistrate to have been for a determination

Page 1007

whether plaintiff's in forma pauperis complaint should be dismissed as frivolous under 28 U.S.C. Sec. 1915(d). Magistrates may properly be allowed to hear motions to dismiss in forma pauperis actions pursuant to Sec. 1915(d), Spears v. McCotter, 766 F.2d 179, 180-81 (5th Cir.1985), but 28 U.S.C. Sec. 636(b) narrowly prescribes the magistrate's power. Although Sec. 636(b)(1)(A) does not allow the magistrate to make a final ruling on motions to dismiss, Sec. 636(b)(1)(B) permits a magistrate to hear such motions referred by the district court and to submit proposed findings and recommendations to the district court. See Neal v. Miller, 542 F.Supp. 79, 81 (S.D.Ill.1982) (Sec. 636(b)(1)(B) authorizes and governs referral of Sec. 1915(d) motions to magistrate).

The hearing before the magistrate by telephone conference call was held on September 4, 1985. During the hearing the plaintiff remained in confinement in federal prison in Marion, Illinois. The magistrate filed proposed findings of fact and recommendations with the district court on December 26, 1985. He recommended that plaintiff's complaint be dismissed with prejudice. On December 30, 1985, the district court summarily adopted these proposed findings and recommendations and dismissed the complaint.

On appeal plaintiff asserts that the court erred in several respects: in ordering a telephone hearing, especially one in which plaintiff had trouble understanding testimony due to static and background noise; in not appointing counsel for plaintiff; in denying plaintiff the opportunity to communicate with his witnesses prior to the hearing; and in limiting the number of witnesses plaintiff could subpoena and the number of defendants he could cross-examine. Plaintiff filed timely objections in district court to the magistrate's recommendations. He did not object on appeal, however, as he...

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  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...Anderson, 45 F.3d at 1314, opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995) (citing cases, see, e.g., Gee v. Estes, 829 F.2d 1005, 1006 (10th Cir. 1987) (Eighth Amendment claim established by allegations that prisoner was placed naked in a lice-infested cell with no blankets ......
  • Jaramillo v. Frewing, No. CIV 17-0673 JB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 28, 2018
    ...... the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987). A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to the M......
  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 20, 2018
    ...Anderson, 45 F.3d at 1314, opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995) (citing cases, see, e.g., Gee v. Estes, 829 F.2d 1005, 1006 (10th Cir. 1987) (Eighth Amendment claim established by allegations that prisoner was placed naked in a lice-infested cell with no blankets ......
  • United States v. Garcia, No. CIV 16-0240 JB/LAM
    • United States
    • U.S. District Court — District of New Mexico
    • February 1, 2017
    .... . . . the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987). A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to t......
  • Request a trial to view additional results
451 cases
  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 15, 2018
    ...Anderson, 45 F.3d at 1314, opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995) (citing cases, see, e.g., Gee v. Estes, 829 F.2d 1005, 1006 (10th Cir. 1987) (Eighth Amendment claim established by allegations that prisoner was placed naked in a lice-infested cell with no blankets ......
  • Jaramillo v. Frewing, No. CIV 17-0673 JB/SCY
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • August 28, 2018
    ...... the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987). A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to the M......
  • Quiroga v. Graves, 1:16-cv-00234-DAD-GSA-PC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 20, 2018
    ...Anderson, 45 F.3d at 1314, opinion amended on denial of reh'g, 75 F.3d 448 (9th Cir. 1995) (citing cases, see, e.g., Gee v. Estes, 829 F.2d 1005, 1006 (10th Cir. 1987) (Eighth Amendment claim established by allegations that prisoner was placed naked in a lice-infested cell with no blankets ......
  • United States v. Garcia, No. CIV 16-0240 JB/LAM
    • United States
    • U.S. District Court — District of New Mexico
    • February 1, 2017
    .... . . . the district court must, at a minimum, listen to a tape recording or read a transcript of the evidentiary hearing." Gee v. Estes, 829 F.2d 1005, 1008-09 (10th Cir. 1987). A district court must "clearly indicate that it is conducting a de novo determination" when a party objects to t......
  • Request a trial to view additional results

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