D.C. No. 1:10-CV-00506-CG, D. N.M.
Before LUCERO, Circuit Judge, BRORBY, Senior Circuit Judge, and BACHARACH, Circuit Judge.
ORDER AND JUDGMENT [*]
Robert E. Bacharach Circuit Judge
Mr. Justin James Hinzo, a state prisoner, sued the New Mexico Corrections Department, Wexford Health Sources, Inc., Correctional Medical Services, Inc., G.E.O., and fifteen individuals. Invoking 42 U.S.C. § 1983 and state law, Mr. Hinzo alleges violations of the Eighth Amendment and negligence. The district court entered judgment for the defendants on the federal claims and declined to exercise supplemental jurisdiction over the state-law claims. Mr. Hinzo appeals and moves for leave to proceed in forma pauperis. We affirm the district court's judgment, but grant Mr. Hinzo's motion to proceed in forma pauperis.
In 2004, while incarcerated, Mr. Hinzo slipped and hurt his back while climbing off his top bunk bed. In 2009, less than two days after undergoing back surgery, he sustained a second back injury while riding in a van driven by Corrections Officer David Gonzales. Later, Mr. Hinzo fell on icy prison steps, which aggravated his back problems. He ultimately sued, filing a third amended complaint in which he complained about unsafe conditions and inadequate medical care.
On screening, the district court dismissed the Eighth Amendment claims against the state corrections department and five of its employees. The court also expressed concern that some of Mr. Hinzo's claims might be barred by a three-year statute of limitations. With this concern, the court ordered Mr. Hinzo to submit evidence to justify tolling on the claims arising before December 31, 2006.
The New Mexico Corrections Department, Wexford, and Correctional Medical Services submitted investigative reports, but then asked the court to consider them as summary judgment motions. The district court granted the motions on the Eighth Amendment claims involving: (1) G.E.O.'s breach of a duty to provide a safe environment by operating a facility that lacked ladders to top bunk beds, (2) failure to provide adequate medical care, and (3) deliberate indifference to health and safety when Correctional Medical Services and Officer Gonzales discharged Mr. Hinzo from the hospital earlier than recommended and transported him in an unsafe manner.
In addition, the district court: (1) dismissed the claims against Officer Gonzales for failure to exhaust administrative remedies, (2) dismissed with prejudice the G.E.O. claim on the ground that it was untimely, (3) dismissed without prejudice all state-law claims, and (4) denied as moot Mr. Hinzo's motion for summary judgment.
Mr. Hinzo appealed. Because Mr. Hinzo proceeds pro se, we construe his arguments liberally but do not assume the role of his advocate. See United States v. Viera, 674 F.3d 1214, 1216 n.1 (10th Cir. 2012).
Denial of Motions for Appointment of Counsel
Throughout his appellate brief, Mr. Hinzo contends that the district court should have appointed him counsel. He asserts that the denial of counsel "severely prejudiced" him because he needed an attorney to obtain expert testimony or other evidence. Aplt. Opening Br. at 3. He also claims that not having counsel "prejudiced" him because counsel would "have [had] access to caselaw, statutes etc." Id. At 6.
We are unpersuaded. The district court evaluated the relevant factors and determined that Mr. Hinzo did not meet his burden. See Hill v. SmithKline Beecham Corp., 393 F.3d 1111, 1115 (10th Cir. 2004). In this evaluation, the court found that Mr. Hinzo's filings demonstrated his ability to provide supporting facts and that he was able to express familiarity with legal concepts like statutes of limitations, motions to amend, exhaustion of administrative remedies, and injunctive relief. Therefore, we conclude that the district court did not abuse its discretion in denying Mr. Hinzo's motions for appointment of ...