490 F2d 1277 Byrd v. L Wolff

490 F.2d 1277

James BYRD, Appellant,
Charles L. WOLFF, Jr., Warden, Nebraska Penal Complex, Appellee.

No. 73-1672.

United States Court of Appeals, Eighth Circuit.

Submitted Jan. 18, 1974.
Decided Jan. 22, 1974.

Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.1


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James Byrd commenced a civil rights action in November of 1972 in the United States District Court for the District of Nebraska. He alleged that he was being denied proper medical care by prison officials and was being refused outside medical care. He asked that the appellee be required to furnish him with outside medical care and that he be awarded one million dollars in damages for injuries sustained by him through the failure of the prison officials to provide proper medical attention. The trial court granted the appellee's motion for a summary judgment. It noted that Byrd had been discharged from the hospital on November 16, 1972, a few days after the suit was filed; and that on the date of dismissal, hospital medical personnel found that Byrd was not suffering from any mental or physical illness. A review of the records convinces us that the trial court properly granted the motion for summary judgment. See, Cates v. Ciccone, 422 F.2d 926, 928 (8th Cir. 1970). Compare, Jones v. Lockhart, 484 F.2d 1192 (8th Cir. 1973).


We note that Byrd contends, for the first time on this appeal, that he had been confined in the 'hole' without medical treatment for the last six months. This issue was not before the trial court at the time it granted appellee's motion for summary judgment, and we express no opinion with respect to the sufficiency or merits of the allegation.


James Byrd, pro se.


Clarence A. H. Meyer, Atty. Gen., and Harold S. Salter, Deputy Atty. Gen., Lincoln, Neb., for appellee.


TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation