Shawn D. Younger v. James L. Saffle, in His Official Capacity Lanny Weaver Ron Champion Charles Arnold, 153 F.3d 730, 10th Cir. (1998)
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Scribd Government DocsShawn D. Younger v. James L. Saffle, in His Official Capacity Lanny Weaver Ron Champion Charles Arnold, 153 F.3d 730, 10th Cir. (1998)
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Scribd Government Docs153 F.
3d 730
98 CJ C.A.R. 4108
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a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.
Shawn D. YOUNGER, Plaintiff-Appellant,
v.
James L. SAFFLE, in his official capacity; Lanny Weaver; Ron
Champion; Charles Arnold, Defendants-Appellees.
No. 98-5003.
United States Court of Appeals, Tenth Circuit.
July 28, 1998.
Before PORFILIO, KELLY, and HENRY, Circuit Judges.
ORDER AND JUDGMENT*
JOHN C. PORFILIO, Circuit Judge.
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.
This is an action initiated pro se under 28 U.S.C. 1983 for damages related to
two incidents which occurred in state penal institutions. The first is a claim of
denial of constitutional rights related to a prison disciplinary action. The second
is a claim for damages resulting from injuries allegedly sustained by plaintiff at
the hands of a cellmate. Counsel was appointed in the district court to represent
plaintiff when his health would not permit him to continue his own
representation. Judgment was entered for the defendants after a bench trial, and
this appeal followed.
The appeal, however, stretches credulity, challenges traditional concepts of
justiciability, and teeters on the brink of frivolity. Its futility is underscored by
counsel's quotation of the dissent of Justice Stevens in United States v.
Scheffer, --- U.S. ----, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), as his only
authority for his argument the plaintiff has a constitutionally guaranteed right to
demand that he and all witnesses in a prison disciplinary proceeding be
subjected to a polygraph examination. In Scheffer, Justice Stevens opined that a
blanket rule denying use of polygraphs in military courts is unconstitutional
because it impinges upon a defendant's right to a defense. Despite the fact the
opinion has little bearing on the issue plaintiff has raised, it should be hardly
surprising that if Justice Stevens' contention did not sway the Court, we surely
cannot consider it persuasive authority in this case. Suffice to say, the district
court properly concluded a state inmate has no constitutional right to the use of
a polygraph in a prison disciplinary hearing. See United States v. Tsosie, 986
F.2d 1431, 1993 WL 34780 (10th Cir.1993) (unpublished) (Denial of
defendant's use of a polygraph in his defense is not a denial of due process.).
Plaintiff next claimed the Oklahoma Director of the Department of Corrections,
in his official capacity, is liable in damages because plaintiff was placed in a
cell with a prisoner who was "known by the prison staff as a serious threat to
himself and his unit." The district court held the Director was not a "proper
defendant," citing Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73
L.Ed.2d 396 (1982), and denied the claim.
On appeal, counsel argues the Director is responsible "for the operational
policies of penal institutions and thus ultimately responsible for Younger's cell
assignment." Counsel does not address the state's Eleventh Amendment
argument nor does he address our line of cases mandating personal participation
as a predicate to 1983 liability. Bennett v. Passic, 545 F.2d 1260, 1262-63
(10th Cir.1976); Mee v. Ortega, 967 F.2d 423, 430-31 (10th Cir.1992).
Furthermore, because plaintiff did not identify a specific individual who was
responsible for his cell placement, he cannot maintain an action against the
Director based on respondeat superior liability. See Andrews v. Philadelphia,
895 F.2d 1469, 1488 (3d Cir.1990).
JUDGMENT AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This 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
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