Marquez v. Watkins , 163 F. App'x 699 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
January 18, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
CHRISTOPHER RAY MARQUEZ,
Plaintiff-Appellant,
v. No. 05-4121
(D.C. No. 2:02-CV-142-TS)
BARRY WATKINS, Lieutenant, at the (D. Utah)
Utah State Prison, individually;
TRACY SKINNER, Officer, at the
Utah State Prison, individually;
KELLY WORLY, Officer, at the Utah
State Prison, individually,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before McCONNELL, ANDERSON, and BALDOCK, Circuit Judges.
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)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Christopher Ray Marquez, a state prisoner proceeding pro se, appeals from
a summary judgment in his excessive force case. We affirm.
B ACKGROUND
In May 2001, while incarcerated in the Utah State Prison’s security threat
unit, Marquez asked corrections officer Tracy Skinner to “see the captain to
discuss getting his contact visits reinstated.” Record on Appeal (ROA), Doc. 38,
Ex. C at 2. Skinner either ignored Marquez or told him that the captain was
unavailable. Marquez then stated:
Look, I just want my contact visits. . . . What do I got to do? Do I
got to go off? You know, do I got to show some type of attitude to
go off to get somebody’s attention around - - do I got to try and
commit suicide?
Id., Ex. A (Marquez Dep. at 28). Skinner, with the assistance of officers Barry
Watkins and Kelly Worley, placed Marquez in restraints and escorted him “in an
open ended triangle . . . position” to the prison’s mental health unit for
evaluation. Id., Ex. C at 2. Along the way, the officers allegedly “pushed and
shoved” Marquez. Id., Doc. 3 at 4. Marquez told the officers he “want[ed] a
camcorder,” apparently seeking to record their actions. Id., Doc. 38, Ex. A
(Marquez Dep. at 33). According to Skinner and Watkins, when they were
descending some stairs, Marquez “began to drop his feet,” id., Ex. C at 2,
possibly trying to “drag [them] down,” id., Ex. E at 3.
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Marquez was placed in a holding cell, where he claims to have been
“dragged to the floor,” id., Doc. 3 at 4, and repeatedly punched in the back of the
head to the point that he “had tears in [his] eyes” and “was crying,” id., Doc. 38,
Ex. A (Marquez Dep. at 35). The officers deny striking Marquez and state that he
was “placed . . . chest down on the floor” after he “began making unpredictable
movements.” Id., Ex. C. Marquez claims that he laid on the floor for “a long
time,” possibly twenty minutes, before the officers began videotaping his
treatment. Id., Ex. A (Marquez Dep. at 66).
The videotape shows Marquez being thoroughly examined by medical and
mental health personnel and debating his contact visitation restrictions with
officers. Throughout the roughly fifty-minute tape, Marquez appears lucid and
never complains of having been battered or injured, except to reveal soreness in
his wrists. The medical report states that Marquez’s examination revealed no
bruising or abrasions and that Marquez “denie[d] any pain at all.” Id., Ex. D at
42. The mental health report states that Marquez “spoke freely,” was “oriented to
time, place and person and situation,” and “admitted to being frustrated over not
receiving contact visits with his 2 yr old daughter.” Id. at 41. After his
examinations, Marquez was apparently moved to the prison’s maximum security
unit.
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Marquez sued Skinner, Watkins, and Worley for using excessive force in
violation of the Eighth Amendment. The district court granted the officers
summary judgment, ruling that they “reasonably perceived some resistance from
[Marquez] and responded appropriately . . . by taking [Marquez] to the ground,”
id., Doc. 49 at 6, and that “the force used against [Marquez] was de minimus and
did not rise to the level of a constitutional violation,” id. at 7. Marquez appeals.
D ISCUSSION
“We review the district court’s grant of summary judgment de novo,
applying the same legal standard used by the district court.” Garrison v. Gambro,
Inc., 428 F.3d 933, 935 (10th Cir. 2005). Summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of
law.” Fed. R. Civ. P. 56(c).
The Eighth Amendment, applicable to the states via the Fourteenth
Amendment, proscribes the infliction of cruel and unusual punishments against
persons convicted of crimes. Clemmons v. Bohannon, 956 F.2d 1523, 1525
(10th Cir. 1992). But excluded from the Eighth Amendment’s reach are “de
minimis uses of physical force, provided that the use of force is not of a sort
repugnant to the conscience of mankind.” Hudson v. McMillian, 503 U.S. 1, 9-10
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(1992) (quotations omitted). Thus, “[n]ot every push or shove, even if it may
later seem unnecessary . . . , violates a prisoner’s constitutional rights.” Id. at 9(quotation omitted). The ultimate constitutional inquiry is whether there was an
unnecessary and wanton infliction of pain. DeSpain v. Uphoff, 264 F.3d 965, 978
(10th Cir. 2001) (quotation omitted).
We conclude that Marquez’s Eighth Amendment claim cannot withstand
summary judgment. To the extent that the claim rests on his being pushed and
shoved on the way to the mental health unit, that use of force, assuming it even
occurred, was de minimis, resulted in no injury, and failed to implicate
constitutional concerns. See DeWalt v. Carter, 224 F.3d 607, 620 (7th Cir. 2000)
(holding that prison guard’s “simple act of shoving” inmate into a door frame was
not an Eighth Amendment violation). To the extent that Marquez claims he was
dragged to the floor in the mental health holding cell and repeatedly punched in
the back of the head, we conclude that no “reasonable jury could return a verdict”
in his favor, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Marquez
offered nothing but his own allegations to dispute the officers’ contrary affidavit
testimony, which is supported by the videotape and the reports from medical and
mental health personnel. A party cannot manufacture a genuine issue for trial
based solely on unsubstantiated allegations. Bones v. Honeywell Int’l, Inc.,
366 F.3d 869, 875 (10th Cir. 2004). Nor does a triable issue arise from slight
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variations in the officers’ descriptions of the open-ended triangle escort position
or the “verbal commands [issued] when taking [Marquez] to the ground,” Aplt.
Br. at 16. See Anderson, 477 U.S. at 248 (“Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Factual disputes that are irrelevant or unnecessary
will not be counted.”). 1
Marquez also argues that the district court failed to rule on his motions to
file “supplemental pleadings,” ROA, Doc. 36, and to “order a written Declaration
of Officer Selli,” id., Doc. 43. Through his motion to file “supplemental
pleadings,” Marquez sought to add that his transfer to the maximum security unit
violated due process. Through his other motion, Marquez sought testimony from
officer Selli who, at an unspecified date, allegedly “viewed a laceration injury to
[Marquez’s] head” and some bruises. Id., Doc. 43 at 1. Although the district
court did not expressly rule on these motions, we conclude that the district court
impliedly denied them when it disposed of Marquez’s complaint through summary
judgment. See Davis v. United States, 961 F.2d 53, 57 n.6 (5th Cir. 1991). As
explained below, we discern no error in their denial.
1
Marquez does not challenge on appeal, and thus we do not examine, the
district court’s ruling that the Eighth Amendment was not violated under the
officers’ version of events.
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A motion to add a claim based on events challenged in the original pleading
seeks amendment, rather than supplementation, compare Fed. R. Civ. P. 15(a)
with Fed. R. Civ. P. 15(d), and may be denied if the proposed amendment could
not withstand a motion to dismiss, see Bradley v. Val-Mejias, 379 F.3d 892, 901
(10th Cir. 2004). Because an inmate’s transfer to maximum security is not
subject to procedural due process protection in the absence of a state-imposed
constraint on transfer, see Meachum v. Fano, 427 U.S. 215, 229 (1976), which
Marquez did not allege and we have not found, he was not entitled to amend his
complaint to challenge his transfer to maximum security.
Regarding Marquez’s motion seeking the declaration of officer Selli, it
appears that Marquez was asking the district court to supplement the Martinez
report. We see no reason why the district court should have granted the motion,
given that Marquez (1) offered no date on which his injuries were supposedly
viewed by Selli and (2) even stated that when Selli inquired about the injuries, he
(Marquez) did not attribute them to Skinner, Watkins or Worley. ROA, Doc. 43
at 2.
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The judgment of the district court is AFFIRMED. Marquez’s motion to
proceed on appeal without prepayment of fees is GRANTED, and he is reminded
of his continuing obligation to make partial payments until he has paid the filing
fee in its entirety. See 28 U.S.C. § 1915(b).
Entered for the Court
Stephen H. Anderson
Circuit Judge
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