                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 18 2003
                              FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    DENNIS L. STANTON,

                  Plaintiff-Appellant,

    v.                                                    No. 02-1336
                                                  (D.C. No. 00-RB-2219 (PAC))
    ROBERT FURLONG; LARRY                                   (D. Colo.)
    STEERMAN,

                  Defendants-Appellees.


                              ORDER AND JUDGMENT          *




Before SEYMOUR , KELLY , and LUCERO , 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.

         Plaintiff Dennis L. Stanton, an inmate at Colorado’s Sterling Correctional

Facility (SCF) during the period relevant to this action, appeals from a judgment



*
      This order and judgment is not binding precedent, except under the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.
in favor of SCF officer Larry Steerman following a bench trial on his claims of

excessive force and retaliation.   1
                                       We review the district court’s legal conclusions

de novo and its fact findings for clear error,         Silbrico Corp. v. Ortiz , 878 F.2d 333,

334 (10 th Cir. 1989), and affirm for the reasons explained below.

       The basic historical facts are largely undisputed. Where conflicts in the

evidence do exist, we follow the pertinent findings of the district court, which

have specific “factual support in the record” and do           not leave us “with the

definite and firm conviction that a mistake has been made.”            Nieto v. Kapoor , 268

F.3d 1208, 1217 (10 th Cir. 2001).

       Stanton’s claims have their genesis in a disagreement over a rule barring

unassigned inmates from the prison recreation yard on weekends and holidays.

Shortly after Stanton successfully challenged a disciplinary action based on his

violation of the rule, he and Steerman had a conversation about its continued

enforcement, culminating with a pointed exchange in which Stanton (1) stated he

intended to use the yard and hoped Steerman would be there when he did “to try

and stop him,” and (2) replied to Steerman’s inquiry whether that was a threat by

saying “you’re damn right it is.” Steerman responded by handcuffing Stanton and

having him escorted to the shift commander’s office. After questioning Stanton



1
       The district court was clearly correct to dismiss warden Robert Furlong
from the case for lack of personal involvement.    See R., docs. 64, 70.

                                                 -2-
for some ten minutes, the shift commander ordered him taken to segregation for

threatening an officer. This disciplinary action was upheld through administrative

appeal and subsequent state judicial review.

      Stanton said nothing about the handcuffs to the shift commander, but when

he was being escorted he complained that the right handcuff was too tight. One

of the officers agreed to loosen it and in the process also found that it was not

double-locked. The officer reported both matters to the shift commander and

Steerman was counseled about proper handcuffing procedure. When Stanton

arrived at the segregation unit and complained of some tingling in his right wrist,

he was examined by medical personnel. They found two abrasions and some

slight edema–the kind of minor trauma which other testimony in the record

indicated was consistent with the normal use of handcuffs. X-rays taken a few

days later revealed an old, poorly healed fracture but no new injury to the wrist.

      On these facts, the district court held that Steerman had not used excessive

force in handcuffing Stanton. The district court applied the proper legal standard,

asking whether Steerman had “acted maliciously and sadistically for the very

purpose of causing harm rather than in a good-faith effort to maintain or restore

discipline.” Mitchell v. Maynard , 80 F.3d 1433, 1440 (10 th Cir. 1996) (following

Hudson v. McMillian , 503 U.S. 1, 6-7 (1992));   see also Northington v. Jackson ,

973 F.2d 1518, 1523 (10 th Cir. 1992). Noting the evident security purpose for


                                          -3-
Steerman’s use of the handcuffs, the length of time during which the handcuffed

Stanton voiced no discomfort while speaking with the shift commander, and the

relatively minor indicia of trauma ultimately found on medical examination, the

district court concluded that Steerman did not handcuff Stanton maliciously to

inflict pain or cause harm but reasonably to maintain order while the appropriate

institutional response to Stanton’s threatening behavior was decided upon.     See

R., Supp. Vol. I, at 196. We discern no error in this necessarily circumstantial

determination. In particular, we note that while significant physical injury is not

a legal prerequisite for an excessive-force claim, the extent of the injury inflicted

on an inmate can be, and clearly was here, a relevant factual consideration “in

determining whether corrections officers unnecessarily and wantonly inflicted

pain.” Northington , 973 F.2d at 1523.

      The principles governing Stanton’s claim of retaliatory prison discipline

were summarized by this court in    Peterson v. Shanks , 149 F.3d 1140, 1144 (10 th

Cir. 1998):

              We have held that prison officials may not retaliate against or
      harass an inmate because of the inmate’s exercise of his
      constitutional rights. This principle applies even where the action
      taken in retaliation would be otherwise permissible. . . . [H]owever,
      it is not the role of the federal judiciary to scrutinize and interfere
      with the daily operations of a state prison, and our retaliation
      jurisprudence does not change this role. Obviously, an inmate is not
      inoculated from the normal conditions of confinement experienced by
      convicted felons serving time in prison merely because he has
      engaged in protected activity.    Accordingly, a plaintiff must prove

                                           -4-
       that but for the retaliatory motive, the incidents to which he refers,
       including the disciplinary action, would not have taken place   .

(emphasis added, citation and quotations omitted). Given the “but for” causation

test to be applied and unique prison-management interests to be accommodated, if

a reasonably related “legitimate penological interest” is found, in fact, to underlie

the challenged disciplinary action, a retaliation claim must fail.   See id. Here, the

district court’s finding that Stanton was disciplined because of misconduct has

factual support in the record and suffices to defeat Stanton’s retaliation claim.

       Finally, Stanton argues that the district court impermissibly prejudiced his

case when it denied his last-minute motion for service of subpoenas on numerous

witnesses. We review a procedural ruling solely for an abuse of discretion.     See,

e.g. , United States v. Lepiscopo , 458 F.2d 977, 978 (10 th Cir. 1972); United

States v. Gutierrez , 48 F.3d 1134, 1138 (10 th Cir. 1995).

       Just days before trial Stanton realized he had failed to take any steps to

obtain subpoenas for many of his witnesses and sent a motion to the district court

requesting assistance in having the necessary subpoenas served at government

expense. On the day of trial, the district judge, who had not yet received the

motion, responded to Stanton’s oral recitation of these events as follows:

               This matter has been set for trial for some time. Furthermore,
       this litigation . . . is roughly two years old. You previously, the
       record discloses, had filed a motion for the issuance of subpoenas by
       the court. That was duly considered and denied by Magistrate Judge
       Coan.

                                             -5-
             At that point, relatively early on in this litigation, you were on
      notice of what efforts, if any, you must undertake as a    pro se litigant
      to arrange the presentation of your witnesses in this trial, and the
      court is somewhat astonished to learn that you have waited until
      Wednesday of this past week to make those arrangements.

             The court has not received or reviewed your request. It is not
      timely. It cannot be granted by the court unless there is a
      continuance of this trial. The court is not inclined to continue the
      trial. This is your opportunity to make an opening statement, and you
      may proceed.

R. Supp. Vol. I, at 6.

      We see no abuse of discretion here. The transcript reflects the thoughtful

consideration of relevant procedural facts and an informed judgment thereon. We

note that prison authorities brought two of Stanton’s inmate witnesses to trial and

Stanton himself testified as well. His contention that the voluntary presence of

these inmate witnesses somehow renders suspect the absence of prison employees

he had wanted to question suggests a basic misunderstanding of the purpose of the

subpoena process as the prescribed means to compel the attendance of just such

involuntary non-party witnesses.    See Fed. R. Civ. P. 45(a)(1)(C), (2).

      The judgment of the district court is     AFFIRMED .

                                                      Entered for the Court

                                                      Stephanie K. Seymour
                                                      Circuit Judge




                                              -6-
