Jules T. Smith, Plaintiff-appellant, v. W.j. Estlack, Officer, Barbara Austin, Nurse, James J.blanchard, Governor, James L. Kelly, Sheriff,county of Saginaw, Defendants-appellees, 945 F.2d 405 (6th Cir. 1991)

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U.S. Court of Appeals for the Sixth Circuit - 945 F.2d 405 (6th Cir. 1991)

Sept. 26, 1991


Before KENNEDY and DAVID A. NELSON, Circuit Judges, and CONTIE, Senior Circuit Judge.


ORDER

Jules T. Smith, a/k/a Jules T. Smith-El, a pro se Michigan prisoner, appeals a district court judgment dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. The case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, the panel unanimously agrees that oral argument is not necessary. Fed. R. App. P. 34(a).

Seeking damages, Smith sued Saginaw County (Michigan), the Saginaw County sheriff (Kelly), a Saginaw County police officer (Estlack), a nurse at the Saginaw County jail (Austin), and the former Governor (Blanchard) of the state of Michigan, alleging that his rights under the Eighth Amendment to the Federal Constitution were violated when: (1) Estlack subjected him to cruel and unusual punishment and (2) Austin failed to provide him with adequate medical treatment. Smith was a pre-trial detainee. Because he had not yet been convicted of a crime, the district court properly evaluated his claim under the Due Process Clause of the Fourteenth Amendment rather than under the Eighth Amendment. Roberts v. City of Troy, 773 F.2d 720, 723 (6th Cir. 1985).

The district court dismissed Smith's claims against Blanchard, Kelly and Saginaw County as frivolous pursuant to 28 U.S.C. § 1915(d). After de novo review of the magistrate judge's report and recommendation in light of Smith's objections, the district court adopted the magistrate judge's findings and recommendation and granted summary judgment for Estlack and Austin. Smith has filed a timely appeal. He has requested the appointment of counsel and a transcript at government expense in his brief on appeal.

Upon review, we conclude that the district court properly dismissed Smith's action.

Smith's claims against Blanchard, Kelly, and Saginaw County are frivolous. See Neitzke v. Williams, 490 U.S. 319, 325 (1989). Summary judgment was properly entered in favor of Estlack and Austin, because the record shows that there is no genuine issue as to any material fact, and they are entitled to judgment as a matter of law. See Canderm Pharmacal, Ltd. v. Elder Pharmaceuticals, Inc., 862 F.2d 597, 601 (6th Cir. 1988).

Accordingly, the requests for counsel and for a transcript at government expense are hereby denied, and the district court's judgment is hereby affirmed. Rule 9(b) (3), Rules of the Sixth Circuit.