Billings v. Martin ( 2000 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JAN 6 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
MAURICE BILLINGS,
Plaintiff-Appellant, No. 99-6186
v. (D.C. No. 97-CV-1645-A)
TOM C. MARTIN; LEMON; CCA, a (W.D. Okla.)
Private Corporation; L. HARMON; R.
EZELL; MAX WILEY; YASINSKI;
CARTER; BATES; OWENS;
CAVANUGH; and FERREEBEE,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and MURPHY, Circuit Judges.
After examining the briefs and the 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)(2); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
Plaintiff Maurice Billings, proceeding pro se, appeals the district court’s
*
This order and judgment is not binding precedent, except under the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.
denial of his civil rights action. Plaintiff is an inmate at the Great Plains
Correctional Facility, a private prison in Oklahoma. He brought this action under
42 U.S.C. § 1983 alleging several violations of his constitutional rights, including
due process violations, use of excessive force, denial of the right to practice
religion, lack of exercise, and inadequate medical care. Defendants moved to
dismiss the complaint, or, in the alternative, for summary judgment.
The magistrate judge reviewed each of Plaintiff’s claims and recommended
that the motion for summary judgment be granted in favor of Defendants. See R.,
Doc. 56 (Report and Recommendation filed Feb. 25, 1999). The district court
liberally construed Plaintiff’s objections to the magistrate judge’s report and
found that Plaintiff objected only to the due process, excessive force, and free
exercise of religion claims. 1 Reviewing these claims de novo, the court held that
Defendants were entitled to summary judgment, adopted the magistrate judge’s
report and recommendation, and entered judgment in favor of Defendants. See id.at Doc. 58 (Order filed Mar. 31, 1999).
Plaintiff only appeals the district court’s treatment of his excessive force
claim, arguing that the district court erred in finding that his Eighth Amendment
1
The court correctly held that Defendant waived review of the other claims
by not objecting to the magistrate judge’s recommendations on those claims. See
Vega v. Suthers, 195 F.3d 573, 579 (10th Cir. 1999) (citing United States v. One
Parcel of Real Property, 73 F.3d 1057, 1059 (10th Cir. 1996)).
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rights were not violated. He asserts that he was beaten and punished in an
inhuman, illegal, and savage manner by untrained and unqualified private prison
guards, and that the sole purpose of the use of force was to cause him severe pain
and harm. See Appellant’s Br. at 17-18. He argues that the prison personnel used
excessive force and roughness by kneeing him in the groin and twisting his neck.
Having reviewed the briefs and the record in this case de novo, we affirm
the district court’s grant of summary judgment for substantially the same reasons
stated in its Order filed March 31, 1999. While Plaintiff correctly states that the
Eighth Amendment prohibits cruel and unusual punishment, his conclusory
allegations do not create genuine issues of fact regarding the use of excessive
force. An inmate may be restrained by the use of force so long as that force is
applied in a good faith effort to maintain or restore discipline and not maliciously
and sadistically for the very purpose of causing harm. See Whitley v. Albers, 475
U.S. 312, 319 (1986) (“The infliction of pain in the course of a prison security
measure . . . does not amount to cruel and unusual punishment simply because it
may appear in retrospect that the degree of force authorized or applied for
security purposes was unreasonable, and hence unnecessary in the strict sense.”).
The judgment of the district court is AFFIRMED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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