                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            DEC 3 2004
                                  TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk


JOHNATHAN WILLIAM BAFFORD,

          Plaintiff-Appellant,

v.
                                                       No. 04-3136
CHARLES SIMMONS, Secretary of
                                                   (District of Kansas)
Corrections, in his individual and
                                               (D.C. No. 02-CV-3253-GTV)
official capacity; MICHAEL
NELSON, Warden, in his individual
and official capacity; K. VAIL, SST.,
El Dorado Correctional Facility,

          Defendants-Appellees.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      After examining the briefs and the appellate record, this court 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).



      *
       This order and judgment is not binding precedent, except under the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.
Accordingly, appellant’s motion requesting oral argument is denied and the case

is ordered submitted without oral argument.

      Proceeding pro se, Johnathan William Bafford appeals the district court’s

dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983.

Bafford complains that Defendants have violated his Eight Amendment right to be

free from cruel and excessive punishment. He alleges that a prison guard

assaulted him during an incident in the prison. Bafford sought only monetary

damages.

      The district court ordered the preparation of a Martinez report and

Defendants filed a motion for summary judgment.      Martinez v. Aaron , 570 F.2d

317, 319 (10th Cir. 1978). The district court granted the motion, concluding

that: (1) the claims asserted against the Defendants in their official capacities

were barred by the Eleventh Amendment: (2) the claims asserted against

defendants Simmons and Nelson in their individual capacities failed because

Bafford had not asserted that either defendant personally participated in the

alleged use of force; and (3) defendant Vail was entitled to qualified immunity.

      We have reviewed the record, the appellate briefs, and the applicable law

and conclude that the district court’s resolution of Bafford’s claims was proper.

The uncontroverted evidence in the record demonstrates that Bafford instigated a

disturbance in the prison and that defendant Vail acted in response. Despite


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Bafford’s argument that a factual dispute exists over whether his injuries were

caused by defendant Vail or were, instead, self-inflicted, this factual dispute is

not material. Even assuming that Bafford’s injuries were caused by defendant

Vail, Bafford has failed to show that the force used by Vail was applied

“maliciously and sadistically” to cause harm rather than “in a good-faith effort to

maintain or restore discipline.”        Hudson v. McMillian 503 U.S. 1, 6 (1992)

(quotation omitted).

       Bafford’s motion requesting permission to file a supplemental brief is

granted. The district court’s order granting summary judgment to Defendants is

affirmed for substantially the reasons stated by the district court.      Bafford is

reminded that he remains obligated to continue making partial payments until his

appellate filing fee is paid in full.      See 28 U.S.C. § 1915(b).

                                                      ENTERED FOR THE COURT



                                                      Michael R. Murphy
                                                      Circuit Judge




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