Escobar v. Zavaras

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUN 2 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOSE M. ESCOBAR,
Plaintiff-Appellant,
v. No. 97-1303
(D.C. No. 96-M-107)
ARISTEDES ZAVARAS, DONICE (D. Colo.)
NEAL, GARY WATKINS, J. EARLY,
R. RODENBECK, and
A. MONTOYA,
Defendants-Appellees.
ORDER AND JUDGMENT *
Before BALDOCK, EBEL, and MURPHY, 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); 10th Cir. R. 34.1.9. 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This order and judgment is not binding precedent, except under the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.
Plaintiff, who is in the custody of the Colorado Department of Corrections,
commenced a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging
violation of his Eighth Amendment, due process and equal protection rights,
retaliation, and intentional infliction of emotional distress. The magistrate judge
recommended that defendants’ motion for summary judgment be denied as to the
Eighth Amendment, retaliation, and emotional distress claims. After reviewing
the magistrate judge’s recommendation de novo, the district court disagreed with
the recommendation and granted summary judgment in favor of defendants on all
claims. Plaintiff appealed. We vacate and remand for further proceedings.
I. Background
In his complaint, plaintiff alleged that he had made several requests that
defendants Rodenbeck and Montoya, prison guards, refrain from slamming his
tray slot with excessive and unnecessary force and making racial comments to
him. According to plaintiff, defendant Montoya indicated to plaintiff that he
slammed the tray slot because plaintiff complained about him to his superiors and
filed law suits against prison employees. Plaintiff further alleged that after
defendant Rodenbeck “crumbled” a picture of plaintiff’s fiancé and threw it to the
floor, plaintiff felt much emotional pain and anguish. See R. tab 3 at 5-6. About
ten minutes after this incident, plaintiff asked defendant Rodenbeck why he had
destroyed the picture. At the time, plaintiff was on his knees in his cell holding
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onto the tray slot with his little finger between the tray slot and the door. See id.
at 5. Defendant Rodenbeck allegedly told plaintiff that he could now “snitch”
on defendant Rodenbeck and proceeded to slam “the tray slot on the plaintiff[’]s
little finger, tearing a piece of flesh from it and breaking a bone in the finger.”
Id. at 5-6, 11. Defendant Rodenbeck also allegedly informed plaintiff that he
was trying to break plaintiff’s hand in order to stop him from filing law suits.
See id. at 6.
In his first claim for relief, plaintiff contended that defendant Rodenbeck
violated his “right to be free from cruel and unusual punishment by knowingly,
deliberately and intentionally caus[ing] injury and harm to the plaintiff by
breaking and smashing his finger.” Id. at 7. Furthermore, he maintained that
defendants Rodenbeck and Montoya maliciously, sadistically, and for no reason
caused him pain and suffering. Plaintiff’s second claim for relief alleged due
process and equal protection violations based on the above facts. 1 See id. at 8-9.
In his third claim for relief, plaintiff alleged defendants Rodenbeck and Montoya
caused him physical pain in retaliation for filing law suits and bringing their
1
In his second claim for relief, plaintiff also alleged racial discrimination
and demotion from security level III to security level II without due process.
See R. tab 3 at 8-9. The district court ruled against plaintiff on these allegations.
Plaintiff’s mere mention of them in his reply brief on appeal is insufficient for
our consideration. See Coleman v. B-G Maintenance Management of Colo., Inc.,
108 F.3d 1199, 1205 (10th Cir. 1997).
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alleged misconduct to the attention of their superiors. See id. at 9-10. Plaintiff’s
fourth claim asserted that defendants caused him mental and emotional distress by
their actions. See id. at 10-11.
First, the magistrate judge recommended dismissal of defendants Zavaras,
Neal, Watkins, and Early for lack of personal participation. See id. tab 67 at 2-3.
The magistrate judge recommended denial of defendants’ motion for summary
judgment on the Eighth Amendment claim due to a disputed issue of material fact:
whether defendant Rodenbeck acted with deliberate indifference in slamming the
tray slot door on plaintiff’s finger causing it to break. See id. at 3-4. The
magistrate judge determined the other instances of defendants Rodenbeck and
Montoya slamming the tray slot door and use of racial epithets were not
constitutional violations. See id. at 4. With regard to the claim of retaliation, the
magistrate judge recommended denial of summary judgment based on plaintiff’s
allegation that defendant Rodenbeck’s actions of crumpling the picture of
plaintiff’s fiancé and slamming the tray slot door on plaintiff’s finger were done
in retaliation for his filing of law suits. See id. at 6. The magistrate judge
recommended that summary judgment be granted in favor of defendant Montoya,
however, because plaintiff alleged no facts to support a claim of retaliation by
him. See id. Additionally, the magistrate judge determined summary judgment
was not appropriate on the intentional infliction of mental and emotional distress
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claim since plaintiff met the threshold to overcome a motion for summary
judgment on his Eighth Amendment claim. See id. at 6-7.
Upon de novo review, the district court determined plaintiff failed to show
a triable claim for cruel and unusual punishment. See id. tab 73 at 2. Without
explanation, the court rejected plaintiff’s contention of a broken finger allegedly
caused by defendant Rodenbeck with the intent to inflict pain and suffering.
See id. Additionally, the district court concluded any claim of mental and
emotional injury from other conduct of defendant Rodenbeck was not protected
by due process and equal protection guarantees and was barred by the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), which requires the showing of
a physical injury before a prisoner may bring an action for mental or emotional
injury. See R. tab 73 at 2. The district court decided the broken finger was not
an injury connected with the mental and emotional distress claim. See id.
II. Standard of Review
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmovant. See Seymore v.
Shawver & Sons, Inc., 111 F.3d 794, 797 (10th Cir.), cert. denied, 118 S. Ct. 342(1997). Summary judgment is appropriate only if there is no genuine issue as
to any material fact, and the movant is entitled to judgment as a matter of law.
See id.-5-
III. Discussion of Merits
A. Eighth Amendment
We disagree with the district court’s determination that plaintiff did not
assert a triable Eighth Amendment claim. The unnecessary and wanton infliction
of pain by a prison official is prohibited by the Eighth Amendment. See Whitley
v. Albers, 475 U.S. 312, 319-21 (1986).
The district court failed to specifically indicate why it rejected the
magistrate judge’s determination that there was a genuine issue of material fact
with regard to this Eighth Amendment claim. 2 It appears that the district court
2
The magistrate judge determined that there was a genuine issue of material
fact whether defendant Rodenbeck acted with deliberate indifference. The
unnecessary and wanton infliction of pain required for an Eighth Amendment
violation “varies according to the nature of the alleged constitutional violation.”
See Hudson v. McMillian, 503 U.S. 1, 5 (1992). The deliberate indifference
standard applies, for example, when a prisoner alleges that prison officials did not
attend to serious medical needs. See id. at 5-6 (recognizing that providing
medical care does not compete with administrative concerns). In a prison
disturbance context, however, the deliberate indifference standard does not apply.
Rather, the relevant inquiry is whether force was applied in good faith to maintain
or restore discipline or maliciously and sadistically with the intent to cause harm.
See id. at 6-7 (citing Whitley, 475 U.S. at 320-21).
We conclude the magistrate judge incorrectly suggested that the deliberate
indifference standard applied. Instead, because plaintiff alleges excessive force
in violation of the Eighth Amendment, the proper standard is “whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.” Id. Although the standard is different than the one
suggested by the magistrate judge, plaintiff’s allegations are still sufficient to
assert a genuine issue of material fact.
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may have believed that a broken finger was not a sufficient injury for an Eighth
Amendment claim. See R. tab 73 at 2 (“The only physical injury claimed to have
resulted from the conduct of any of the defendants is the allegation that [plaintiff]
sustained a broken finger when [defendant] Rodenbeck slammed the tray slot door
closed on the plaintiff’s hand. . . . Contrary to the view expressed in the
recommendation, the plaintiff has failed to show that there is a triable claim for
cruel and unusual punishment.”). If this was the basis for the district court’s
decision, we disagree. Significant physical injury is not required. See Hudson v.
McMillian, 503 U.S. 1, 10 (1992) (bruises, swelling, loosened teeth, and cracked
dental plate are not de minimis injuries); Mitchell v. Maynard, 80 F.3d 1433,
1440 (10th Cir. 1996) (plaintiff sustained cuts, bruises, swollen hand, and
possible broken fingers from beating by guards); Northington v. Jackson,
973 F.2d 1518, 1523 (10th Cir. 1992) (significant physical injury not required
because constitutional inquiry focuses on whether there was infliction of pain
that was unnecessary and wanton); Adams v. Hansen, 906 F.2d 192, 194 (5th Cir.
1990) (allegation that guard smashed plaintiff’s fingers in door of small opening
in cell door and fingers were lacerated and needed stitches was sufficient
allegation of significant injury).
Plaintiff alleged his broken finger was caused by defendant Rodenbeck’s
deliberate, intentional, malicious, and sadistic conduct and provided facts to
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support this allegation. To the contrary, defendant Rodenbeck argued in the
summary judgment motion that his actions, at most, were negligent. See R. tab 48
at 8. Because there is an issue of fact concerning this Eighth Amendment claim,
we vacate the grant of summary judgment and remand to the district court for
further proceedings.
B. Mental and Emotional Distress
The district court rejected any claims of mental and emotional distress not
related to the broken finger on the ground that defendant Rodenbeck’s conduct
did not violate due process and equal protection guarantees and that any claims
are barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). On appeal,
plaintiff argues that his mental and emotional distress arose from the broken
finger, and he should have alleged only one claim rather than both Eighth
Amendment and mental and emotional distress claims. Plaintiff’s pro se
complaint should be liberally construed, see Haines v. Kerner, 404 U.S. 519,
520-21 (1972), as asserting that he suffered emotional and mental distress due
to the injury to his finger. 3 See R. tab 3 at 10-11. We, therefore, conclude the
district court erred in granting summary judgment on the mental and emotional
3
To the extent plaintiff claims any emotional and mental distress due to
racial epithets, we agree with the district court that there was no constitutional
violation. See Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (verbal
abuse is not constitutional violation actionable under § 1983).
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distress claim. 4 Accordingly, we remand to the district court to consider the
mental and emotional distress claim along with the Eighth Amendment claim in
the first instance. Cf. Miller v. Glanz, 948 F.2d 1562, 1568 (10th Cir. 1991) (if
plaintiff’s Eighth Amendment rights were violated he potentially may recover for
emotional distress).
C. Retaliation
The magistrate judge recommended that summary judgment be denied as
to the retaliation claim against defendant Rodenbeck. Although the district court
indicated that it had reviewed the case de novo, it failed to address this
recommendation in its order granting summary judgment relief. Accordingly,
we remand for the district court to address this claim. See R. Eric Peterson
Constr. Co. v. Quintek, Inc. (In re R. Eric Peterson Constr. Co.), 951 F.2d 1175,
1182 (10th Cir. 1991) (appropriate to remand to district court to consider issue
in first instance).
IV. Appointment of Counsel
Plaintiff argues in his reply brief on appeal that the district court erred in
refusing to appoint counsel. The magistrate judge, citing 28 U.S.C. § 1915(d) and
4
Because we conclude the mental and emotional distress claim relates to the
Eighth Amendment claim alleging physical injury, we need not consider whether
the Prison Litigation Reform Act applies.
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Mallard v. United States District Court, 490 U.S. 296 (1989), denied appointment
of counsel on the grounds that counsel cannot be appointed in this type of case.
See R. tab 43.
Mallard is not dispositive of the issue. While it is true that § 1915(d) does
not authorize the district court to require an attorney to represent an indigent
defendant in a civil case, see Mallard, 490 U.S. at 305, it does allow the court
to make an appropriate request that legal assistance be provided, see id. at 308.
The district court did not make such a request on plaintiff’s behalf. Plaintiff
presumably now argues that the failure to make such a request was error.
The decision whether to request counsel for an indigent inmate under
§ 1915(d) is within the sound discretion of the district court. See Bee v. Utah
State Prison, 823 F.2d 397, 399 (10th Cir. 1987). Denial of counsel should not
be overturned absent a denial of fundamental fairness impinging on due process
rights. See Long v. Shillinger, 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin
v. Freake, 650 F.2d 885, 886 (7th Cir. 1981)). In deciding whether to appoint
counsel, “the district court should consider a variety of factors, including the
merits of the litigant’s claims, the nature of the factual issues raised in the claims,
the litigant’s ability to present his claims, and the complexity of the legal issues
raised by the claims.” Id.; see also Rucks v. Boergermann, 57 F.3d 978, 979
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(10th Cir. 1995) (if plaintiff presents colorable claim, district court should
consider nature of factual issues and ability of plaintiff to investigate facts).
The district court did not discuss these factors. We decline to first
independently consider the request for appointment of counsel. See id. (court
of appeals “may” independently examine propriety of request for counsel).
Instead, in light of our decision to remand on three substantive issues, we also
remand for the district court to consider the relevant factors and address
plaintiff’s request for appointment of counsel. We suggest no outcome on
remand.
V. Discovery
Plaintiff also argues in his reply brief that the district court erred in failing
to grant further time for discovery. We do not address this issue as plaintiff may
again request an opportunity for further discovery in the district court.
The judgment of the United States District Court for the District of
Colorado is VACATED as to the issues considered in this appeal. The action
is REMANDED for further proceedings. The mandate shall issue forthwith.
Entered for the Court
Michael R. Murphy
Circuit Judge
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