05-1052 -- Rocha v. Watkins -- 12/05/2005

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCO A. ROCHA, Plaintiff - Appellant,	No. 05-1052
v.	(D. Colorado)
G. WATKINS, FCF Prison Warden; M. RUDDER, FCF Prison Lt.; D. SLIGAR, C/O FCF Prison; H. ROSE, FCF Dental Assistant and other unnamed defendants, Defendants - Appellees.	(D.C. No. 04-Z-2298)

ORDER AND JUDGMENT^(*)

Before BRISCOE, LUCERO, and MURPHY, Circuit Judges.

After examining the briefs and the appellate record, this court has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Accordingly, the case is ordered submitted without oral argument.

Proceeding pro se, Marco A. Rocha appeals the district court's dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Rocha, a Colorado state prisoner, complains that Defendants (1) violated his equal protection and Eighth Amendment rights by failing to provide him with dental care every six months and (2) violated his Eighth and Fourteenth Amendment rights by placing him in punitive segregation without a hearing.

Although Rocha did not exhaust his administrative remedies, the district court dismissed his complaint pursuant to 42 U.S.C. § 1997e(c)(2). Specifically, the court ruled that Rocha's equal protection claim failed because he alleged only that he did not receive dental care every six months; he did not allege that other inmates do receive care every six months. Rocha's Eighth Amendment claim failed because he did not allege specific facts sufficient to establish that Defendants were deliberately indifferent to his serious medical needs. Farmer v. Brennan, 511 U.S. 825, 847 (1994). The district court concluded that Rocha's due process claim failed because his placement in punitive segregation for nine days did not impose an "atypical and significant hardship" on him. Sandin v. Conner, 515 U.S. 472, 483-84 (1995); Cosco v. Uphoff, 195 F.3d 1221, 1223-24 (10th Cir. 1999).

We have reviewed the record, the appellate briefs, and the applicable law and conclude the dismissal of Rocha's § 1983 complaint was proper. Accordingly, the district court's order dismissing Rocha's complaint is affirmed for substantially the reasons stated in the district court's order dated January 12, 2005. Rocha's motion to proceed in forma pauperis is granted; his Petition for Writ of Mandamus is denied. Rocha is reminded that he remains obligated to continue making partial payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b).

ENTERED FOR THE COURT

Michael R. Murphy

Circuit Judge

FOOTNOTES
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^*.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.

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