                                                                          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      This order and judgment is not binding precedent, except under the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).

                                          -3-
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.

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                              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


                                         -7-
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).

                                         -8-
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.

                                          -9-
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




                                          -10-
(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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