106 F.3d 414
97 CJ C.A.R. 154
NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order.
Rick Dean PETRICK, Plaintiff-Appellant,
v.
Larry FIELDS. Director of Oklahoma D.O.C.; Milton Vogt,
M.D., Medical Supervisor of O.S.P.; Jean Bond, Medical
Administrator of (GMH); Agnes Cruser Des, Superintendent of
(GMH); Ron Stutes, Hospital Administrator of Oklahoma
Memorial Hospital; Ronald E. Doris, Chief Operating Officer
of Oklahoma Memorial Hospital; Dennis Cotner, Medical
Services Administrator of OK D.O.C., Defendants-Appellees.
No. 95-7128.
(D.C.No. CV-94-611-S)
United States Court of Appeals, Tenth Circuit.
Jan. 24, 1997.
Before ANDERSON, KELLY, and LUCERO, Circuit Judges.
ORDER AND JUDGMENT*
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.
Plaintiff appeals from the district court's dismissal, under 28 U.S.C. § 1915(d)1, of his civil rights claims alleging that defendants2 were deliberately indifferent to plaintiff's serious medical needs, in violation of the Eighth and Fourteenth Amendments, by failing to provide him adequate medical treatment for two facial cysts. On appeal, plaintiff argues that the district court erred in denying his motions for default judgment and that the district court erred in dismissing his civil rights claims as frivolous. Reviewing only for an abuse of discretion, see Green v. Seymour, 59 F.3d 1073, 1077 (10th Cir.1995)( § 1915(d) dismissal); Gulley v. Orr, 905 F.2d 1383, 1386 (10th Cir.1990)(denial of default judgment), we affirm.
The district court did not abuse its discretion in denying plaintiff's default judgment motions. Plaintiff does not allege that defendants failed to file timely responses to his complaint, but only that those responses did not adequately address the issues presented by his claims.
Further, dismissal of plaintiff's civil rights claims as frivolous under § 1915(d) was appropriate because, even liberally construing plaintiff's allegations, Haines v. Kerner, 404 U.S. 519, 520-21 (1972), his claims lack any arguable basis in either law or fact. See, e.g., Green, 59 F.3d at 1077 (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)). We, therefore, affirm the district court's § 1915(d) dismissal for substantially the reasons stated in its order of July 26, 1995.
The judgment of the United States District Court for the Eastern District of Oklahoma is AFFIRMED. The mandate shall issue forthwith.
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 10th Cir. R. 36.3
Because plaintiff filed his notice of appeal on August 4, 1995, the Prison Litigation Reform Act, signed into law on April 26, 1996, does not apply to this appeal. White v. Gregory, 87 F.3d 429, 430 (10th Cir.), cert. denied, 117 S. Ct. 528 (1996)
Plaintiff does not appeal the dismissal of Defendants Cruser and Doris for lack of timely service of process
