Wishneski v. Dona Ana County
498 F. App'x 854
10th Cir.2012Background
- Wishneski, an inmate at DACDC, was incarcerated for 18 months in 2007–2008 in Las Cruces, New Mexico.
- In March 2008 he sued DACDC officials, staff, and contractors in the District of New Mexico alleging multiple constitutional violations.
- The district court granted summary judgment on most claims, but entered summary judgment for Wishneski on a First Amendment denial-of-access-to-information claim and nominal damages of $1.00.
- The district court denied summary judgment to Porter on the retaliation claim, but a bench trial later entered judgment for Porter on that claim as well.
- On appeal, Wishneski challenges several orders; the panel affirms all but the denial of his motion for counsel, which is dismissed for lack of jurisdiction.
- Wishneski’s appellate success is limited to the denial-of-counsel issue being non-appealable; the other summary-judgment rulings are reviewed de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Excessive-noise Eighth Amendment | Wishneski claims noise posed substantial risk of serious harm. | Defendants contend no substantial risk or deliberate indifference. | No genuine issue; affirmed summary judgment for defendants. |
| Deliberate indifference re shoulder treatment | Defendants interfered with prescribed physical therapy causing harm. | Interference was negligence at most; no lasting injury shown. | Affirmed summary judgment; no deliberate indifference. |
| Medication claims | Discontinuation and dispensing issues showed deliberate indifference. | Magistrate and district court properly found no deliberate indifference. | Affirmed summary judgment; no deliberate indifference established. |
| Failure-to-protect | Officials knew of risks from housing in a dangerous pod and ignored them. | District court carefully analyzed knowledge; no evidence of reckless disregard. | Affirmed summary judgment; no deliberate indifference shown. |
| Nominal damages for First Amendment access | Nominal damages are insufficient deterrent and justify compensatory damages. | No actual injury proven; nominal damages appropriate. | Affirmed nominal-damages award; no recovery of compensatory damages. |
Key Cases Cited
- Farmer v. Brennan, 511 U.S. 825 (U.S. 1994) (two-part test: substantial risk and deliberate indifference)
- Casanova v. Ulibarri, 595 F.3d 1120 (10th Cir. 2010) (firm waiver rule for magistrate-findings objections)
- Duffield v. Jackson, 545 F.3d 1234 (10th Cir. 2008) (plain-error-like exception to waiver in interests of justice)
- Roska ex rel. Roska v. Peterson, 328 F.3d 1230 (10th Cir. 2003) (requirement to cite specific record references in challenges)
- Youren v. Tintic Sch. Dist., 343 F.3d 1296 (10th Cir. 2003) (punitive damages available only for intent or recklessness)
- United States v. Cherry, 433 F.3d 698 (10th Cir. 2005) (Rule 403 balancing discretion in evidentiary rulings)
- Hill v. SmithKline Beecham Corp., 393 F.3d 1111 (10th Cir. 2004) (abuse of discretion standard for appointment-of-counsel decisions)