Sampley v. Ruettgers, No. 82-2138

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: Before SETH, Chief Judge, and McKAY and LOGAN; McKAY
• Citation: 704 F.2d 491
• Parties: William SAMPLEY and Sammy Martinez, Plaintiffs-Appellants, v. Ronald RUETTGERS, Lieutenant, Wyoming State Penitentiary, Defendant-Appellee.
• Docket Number: No. 82-2138
• Decision Date: 05 April 1983

Page 491

704 F.2d 491 William SAMPLEY and Sammy Martinez, Plaintiffs-Appellants,
v.
Ronald RUETTGERS, Lieutenant, Wyoming State Penitentiary,
Defendant-Appellee. No. 82-2138. United States Court of Appeals,
Tenth Circuit. April 5, 1983.

Page 492

William Sampley, pro se.

Allen C. Johnson, Sr. Asst. Atty. Gen., the State of Wyo., Cheyenne, Wyo., for defendant-appellee.

Before SETH, Chief Judge, and McKAY and LOGAN, Circuit Judges.

Page 493

McKAY, Circuit Judge.

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. 10(e). The cause is therefore ordered submitted without oral argument.

William Sampley and Sammy Martinez appeal the district court's dismissal of their section 1983 ¹ action as frivolous. On this appeal, we treat the dismissal as summary judgment for the defendants. ² Accordingly, we must construe the pleadings and affidavits in a manner most favorable to the plaintiffs to determine whether any material factual disputes exist.

I

Defendant Ruettgers, a guard at the Wyoming State Penitentiary, was giving haircuts to two inmates, plaintiffs Sampley and Martinez. During the haircut, according to the complaint,

[t]he defendant, without provocation, grabbed plaintiff Sampley by the throat with one hand, strangling him as he slammed his head against a steel window frame. Plaintiff Sampley begain [sic] to lose consciousness and sagged against the wall and the defendant brought up his knee and struck him in the groin. Plaintiff Sampley, in reaction to the severe pain in his groin, raised his left leg off the floor and the defendant struck him several times in the left thigh with the barber clippers with the clippers cutting the plaintiff in two (2) places, one (1) of which was at least an inch deep.

Record, vol. 1, at 4. Mr. Ruettgers then cut Mr. Sampley's hair, spit on the hair clippers, pushed Mr. Martinez, and cut Mr. Martinez's hair. The plaintiffs brought this action, claiming that Mr. Ruettgers, by assaulting them, subjected them to cruel and unusual punishment and deprived them of liberty without due process. A magistrate ordered penitentiary officials to investigate the incident. See Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). The officials investigated and submitted a report in which they concluded that Mr. Ruettgers had used no unnecessary force against the plaintiffs. They also submitted an affidavit supporting their conclusion and two affidavits by inmates supporting the complaint's allegations. The trial court then dismissed the complaint. Apparently relying on the prison report, ³ it held that "[t]here is no substantive evidence which would support a

Page 494

finding that violations of a constitutional magnitude have occurred in this matter. The complaint does not allege facts sufficient for such a finding...." Record, vol. 1 at 51. II

Section 1983 "creates a species of tort liability." Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 988, 47 L.Ed.2d 128 (1976). It does so, however, only for deprivations, under color of state law, of federal statutory or constitutional rights; not all state law torts are constitutional violations ⁴ for which section 1983 provides a remedy. Baker v. McCollan, 443 U.S. 137, 145, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979). Accordingly, while we have held that an assault by a jailer on his prisoner can give rise to an action under section 1983, Collins v. Hladky, 603 F.2d 824 (10th Cir.1979), we have recognized that a prison guard's use of force against a prisoner is not always a constitutional violation, Smith v. Iron County, 692 F.2d 685 (10th Cir.1982). As Judge Friendly has noted for the Second Circuit,

[c]ertainly the constitutional protection is nowhere nearly so extensive as that afforded by the common law tort action for battery, which makes actionable any intentional and unpermitted contact with the plaintiff's person or anything attached to it and practically identified with it, see Prosser, Torts Sec. 9 (4th ed. 1971); still less is it as extensive as that afforded by the common law tort action for assault, redressing "Any act of such a nature as to excite an apprehension of battery," id. Sec. 10, at 38. Although "the least touching of another in anger is a battery," Cole v. Turner, 6 Mod. 149, 87 Eng.Rep. 907, 90 Eng.Rep. 958 (K.B. 1704) (Holt, C.J.), it is not a violation of a constitutional right actionable under 42 U.S.C. Sec. 1983. The management by a few guards of large numbers of prisoners, not usually the most gentle or tractable of men and women, may require and justify the occasional use of a degree of intentional force. Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights.

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. Employee-Officer John v. Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (footnote omitted).

The eighth amendment's proscription of cruel and unusual punishment was originally envisaged as a limit on the power of the legislature to authorize sentences and on the judiciary to impose them. Ingraham v. Wright, 430 U.S. 651, 664-66, 97 S.Ct. 1401, 1408-10, 51 L.Ed.2d 711 (1977). Its applicability has since been expanded: "[p]rison brutality ... is 'part of the total punishment to which the individual is being subjected for his crime and, as such, is a proper subject for Eighth Amendment scrutiny.' " Id. at 669, 97 S.Ct. at 1411, quoted in Rhodes v. Chapman, 452 U.S. 337, 345 n. 11, 101 S.Ct. 2392, 2398 n. 11, 69 L.Ed.2d 59 (1981). While the lower courts have recognized that a guard's beating an inmate may violate the eighth amendment if the beating was authorized by the guard's supervisors, they have disagreed on whether a random, unauthorized beating may do so. Compare United States v. Georvassilis, 498 F.2d 883, 885 (6th Cir.1974) with George v. Evans, 633 F.2d 413, 415-16 (5th Cir.1980) and Johnson, 481 F.2d at 1032. See also Note, Applying the Eighth Amendment to the Use of Force Against Prison Inmates, 60 B.U.L.Rev. 332 (1980). We believe that Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), resolves this issue. ⁵

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In Estelle, the Supreme Court held that a prison guard's deliberate indifference to a prisoner's serious medical needs is cruel and unusual punishment. Id. at 104-05, 97 S.Ct. at 291-92. Estelle did not require that the guard's acts be authorized or acquiesced in by his superiors before they can be characterized as punishment. We conclude that under Estelle, a prison guard's unauthorized beating of an inmate can violate...