Jackson v. Ward ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 15 1999
TENTH CIRCUIT
PATRICK FISHER
Clerk
NATHANIEL JACKSON,
Plaintiff - Appellant,
vs. No. 98-7181
(D.C. No. 97-CV-60-S)
RON WARD, Warden of OSP; JERRY (E.D. Okla.)
KIRKPATRICK, CO II, Lieutenant;
CURTIS HOOD, CO I, Sergeant; C.
GILLEY, CO I; CARL BORNHIEM,
CO I; PAUL BROWN, CO II; C.
INGRAM, CO I; D. PETTY, CO II; J.
GIADRONE, CO I,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **
Plaintiff-Appellant Nathaniel Jackson, an inmate appearing pro se and in
forma pauperis, appeals from the district court’s dismissal of his civil rights
*
This order and judgment is not binding precedent, except under the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.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
claims under 42 U.S.C § 1983, alleging use of excessive force in violation of the
Eighth Amendment and denial of due process in violation of the Fourteenth
Amendment because force was used without proper authorization. Defendants are
the warden and correctional officers at Oklahoma State Penitentiary (“OSP”) in
McAlester, Oklahoma. Mr. Jackson seeks both compensatory and punitive
damages for alleged constitutional violations by Defendants during his
incarceration at OSP.
Although Defendants moved for summary judgment, the district court
dismissed Mr. Jackson’s claims against Defendants in their individual capacities
sua sponte as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). It also held that, to
the extent that Mr. Jackson seeks damages against Defendants in their official
capacities, such claims are barred by the Eleventh Amendment. Mr. Jackson does
not appeal the latter ruling. However, he contends that the district court erred in
dismissing his claims pursuant to § 1915(e)(2)(B)(i) because (1) his factual
contentions were not baseless, nor did his legal theories indisputably lack merit;
(2) the court improperly relied on a Martinez report and other evidence submitted
by Defendants; and (3) genuine issues of material fact remain in dispute. He also
challenges the district court’s refusal to appoint counsel on his behalf. Our
jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part and reverse in
part.
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Background
The undisputed facts are these: On May 31, 1995, Mr. Jackson was to be
reassigned to a different cell at OSP. He refused, and Defendant correctional
officers responded with force to move him to his new cell. At some point, Mr.
Jackson broke a food tray and wielded a piece of it at the guards. He was injured
in the altercation and subsequently filed § 1983 claims against Defendants.
At the district court’s request, the Oklahoma Department of Corrections
(“DOC”) prepared a Martinez report and submitted it with Defendants’ answer.
Defendants then filed a motion for summary judgment, but the court dismissed
Mr. Jackson’s claims sua sponte under § 1915(e)(2)(B)(i). The court relied
heavily on the Martinez report in holding that Mr. Jackson’s claims were
frivolous. See R. doc. 38 at 3-4. Although it did not directly discuss Mr.
Jackson’s Due Process claim, it appears to have dismissed that claim as well on
the ground that it was “vague and conclusory.” Id. at 4.
Discussion
Appellate courts review the dismissal under § 1915(e)(2)(B)(i) for abuse of
discretion. See Harper v. Showers, No. 97-60822, 1999 WL 284958, at *4 n.3
(5th Cir. May 24, 1999); McWilliams v. Colorado, 121 F.3d 573, 574-75 (10th
Cir. 1997). To determine if a district court abused its discretion in dismissing an
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action as frivolous pursuant to § 1915(e)(2)(B)(i), we consider, inter alia, whether
the plaintiff is proceeding pro se and whether the district court inappropriately
resolved genuine issues of material fact. See Humphries v. Various Fed. USINS
Employees, 164 F.3d 936, 940 (5th Cir. 1999). However, if the district court
relied on evidence outside the pleadings to resolve disputed issues of material
fact, as it did here, we treat the matter “as a dismissal under Fed. R. Civ. P. 56
and not as a dismissal under 28 U.S.C. § 1915(e)(2)(B).” Raymer v. Enright, 113
F.3d 172, 174 n.1 (10th Cir. 1997); see also Hall v. Belmon, 935 F.2d 1106, 1109
(10th Cir. 1991) (“Although a court may consider the Martinez report in
dismissing a claim pursuant to § 1915(d) [now designated § 1915(e)], it cannot
resolve material disputed factual issues by accepting the report’s factual findings
when they are in conflict with pleadings or affidavits.” (citation omitted)).
We review a grant of summary judgment de novo and consider the record in
the light most favorable to the nonmovant. See McKnight v. Kimberly Clark
Corp., 149 F.3d 1125, 1128 (10th Cir. 1998). Summary judgment is appropriate
only if there is no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). Because the district court in Mr. Jackson’s case ignored genuine issues of
material fact, as discussed below, dismissal was inappropriate under either Rule
56(c) or § 1915(e)(2)(B)(i). See id. (articulating standard for summary
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judgment); Humphries, 164 F.3d at 940 (discussing abuse of discretion standard
for § 1915(e)(2)(B)(i) dismissals); Moore v. Holbrook, 2 F.3d 697, 701 (6th Cir.
1993) (although court used correct legal analysis, summary judgment improper
where decision is based upon disputed facts).
The district court held that Defendants used force against Mr. Jackson in
good faith to maintain order or restore discipline, rather than sadistically or
maliciously, and therefore did not violate his Eighth Amendment rights. See
Whitley v. Albers, 475 U.S. 312, 321 (1986). In making this determination, the
court appears to have improperly relied on the Martinez report prepared by the
DOC, which conflicted with evidence that Mr. Jackson presented. See R. doc. 38
at 3-4; Hall, 935 F.2d at 1111; El’ Amin v. Pearce, 750 F.2d 829, 832 (10th Cir.
1984). Because Mr. Jackson’s complaint alleged facts based on his personal
knowledge and was sworn under penalty of perjury, it can be considered an
affidavit controverting the Martinez report. See Hall, 935 F.2d at 1111.
Defendants contend that they were ordered to move Mr. Jackson to a new
cell and that, when they opened the door, he made a food tray into a weapon and
threatened them with it. See R. doc. 30 at 2-3. In contrast, Mr. Jackson argues
that he only wielded the broken tray after the guards approached him in a
menacing manner and that it did not constitute a lethal weapon. See R. doc. 35 at
2-3. He also alleges that he is African-American; that the officers who forcibly
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moved him to a new cell are Caucasian; and that they brutally beat him. See R.
doc. 2 (attachment A). Careful review of the record convinces us that other
material facts remain in dispute, including but not limited to whether the officers
kicked, hit, and poked Mr. Jackson and engaged in other violence toward him.
Such disputed facts are material to determining if the officers used force in good
faith to preserve prison discipline and security, see Whitely, 475 U.S. at 320-21,
325, and thus if their conduct warrants deference. See id. at 321-22.
Because Mr. Jackson has presented some evidence, including signed
statements from other inmates, that the guards approached him in a threatening
way, assaulted him and continued to kick him when he lay on the floor unarmed,
see R. doc. 35 (attachments), a jury could find the guards’ use of force to be an
“unnecessary and wanton infliction of pain.” Whitely, 475 U.S. at 320. Because
the essential inquiry at the summary judgment stage is whether a reasonable jury
could return a verdict for the nonmovant on the evidence presented, see Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986), the district court erred in
dismissing Mr. Jackson’s Eighth Amendment claim under § 1983.
The court also seems to have relied on medical records indicating that Mr.
Jackson’s injuries were not severe when it determined that his complaint lacked
an arguable basis in law or fact. See R. doc 38 at 3 (noting minor bruising to eye
area and superficial lacerations). In contrast, Mr. Jackson asserts, the blows
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inflicted upon him damaged his eye and caused him to bleed from his nose and
mouth. See R. doc. 2 (attachment A); R. doc. 35 at 4. According to the Supreme
Court, the extent of injury is but one relevant factor, and an insignificant injury
does not end the Eighth Amendment inquiry. See Hudson v. McMillian, 503 U.S.
1, 2 (1992). Thus, even if Mr. Jackson failed to present sufficient evidence of
serious bodily harm, the district court erred in holding that his Eighth Amendment
claim was foreclosed.
With regard to the Fourteenth Amendment claim, “[a] state cannot be said
to have a federal due process obligation to follow all of its procedures; such a
system would result in the constitutionalizing of every state rule, and would not
be administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993). The
district court did not directly address this claim, but we conclude that Mr.
Jackson’s vague and general allegations, raised in his complaint and not
addressed in his summary judgment response, were insufficient to state a claim.
See 28 U.S.C. § 1915(e)(2)(B)(ii); Hall, 935 F.2d at 1110. Although we construe
a pro se litigant’s pleadings liberally, “we do not believe it is the proper function
of the district court to assume the role of advocate for the pro se litigant.” Hall,
935 F.2d at 1110. Thus, the district court properly dismissed Mr. Jackson’s
Fourteenth Amendment claim. Of course, he retains other protection from
arbitrary action, such as that afforded by the Eighth Amendment, see Sandin v.
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Conner, 515 U.S. 472, 487 n.11 (1995), and because we reverse the dismissal of
his Eighth Amendment claim, he is not without legal recourse.
Mr. Jackson also challenges the district court’s refusal to appoint counsel
on his behalf. “We review the denial of appointment of counsel in a civil case for
an abuse of discretion.” Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir.
1995). After reviewing the record, we are convinced that Mr. Jackson
understands the fundamental issues in his case and can present his arguments
coherently and intelligently. See id. We find no abuse of discretion in denying
him appointed counsel.
However, because the district court inappropriately resolved disputed issues
of material fact, relying on the Martinez report submitted by Defendants and
ignoring contrary evidence that Mr. Jackson presented, we REVERSE IN PART
and AFFIRM IN PART its dismissal of Mr. Jackson’s case and REMAND for
further proceedings consistent with this order and judgment.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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