                                                            F I L E D
                                                      United States Court of Appeals
                                                              Tenth Circuit
                  UNITED STATES COURT OF APPEALS
                                                             JUN 28 2000
                         FOR THE TENTH CIRCUIT
                                                        PATRICK FISHER
                                                                  Clerk

RODNEY ALAN GUNDERSON,

            Plaintiff-Appellant,

v.                                             No. 99-8059
                                          (D.C. No. 97-CV-35-B)
JUDY UPHOFF, individually and in                (D. Wyo.)
her official capacity as Director of
the Wyoming Department of
Corrections; JIM DAVIS,
individually and in his official
capacity as the Wyoming Department
of Corrections Health Services
Administrator; JAMES FERGUSON,
individually and in his official
capacity as the Warden of the
Wyoming State Penitentiary;
WILLIAM HETTGAR, individually
and in his official capacity as
Associate Warden of the Wyoming
State Penitentiary; LT. PAINTER;
SGT. GARY HALTER; BLAKE
SMITH; RICK SHINKLE; GEORGE
REEDY; SCOTT ABBOTT; JOHN R.
HOLLOWAY; BEVERLY SHEAR;
WAYNE MARTINEZ, Correctional
Officers, in their individual
capacities; DR. FERGUSON, former
contract physician for the Wyoming
State Penitentiary; JOHN PEERY,
Wyoming State Penitentiary Contract
Health Care Unit Manager; DR.
KENNETH WILLIAM SCHULZE,
contract Health Care Provider for
Wyoming State Penitentiary; DR.
PAUL LONG, contract physician for
Wyoming State Penitentiary; CINDY
FAULKNER, contract nurse
supervisor for Wyoming State
Penitentiary; JAN JONES, contract
nurse for Wyoming State
Penitentiary; NANCY SPERLING,
former contract nurse for Wyoming
State Penitentiary, all in their
individual capacities; WEXFORD
HEALTH SOURCES, INC., contract
Health Care Provider, Wyoming State
Penitentiary; RONALD G.
RUETTGERS, Wyoming State
Penitentiary Associate Warden; KEN
KENNEDY, Wyoming State
Penitentiary counselor; CORPORAL
BISHOP; BRETT CHARLES
TULLY; MARK BROWN; TOMMY
BUSTOS; WENDY HALTER; MIKE
HOWARD; WILLIAM BURR; MIKE
KINGSLEY, Correctional Officers at
Wyoming State Penitentiary, in their
individual capacities,

            Defendants-Appellees.


                          ORDER AND JUDGMENT            *




Before TACHA , ANDERSON , and LUCERO , Circuit Judges.




*
      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.

                                        -2-
       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, a prisoner incarcerated in the Wyoming State Penitentiary, filed

this pro se action pursuant to 42 U.S.C. § 1983, alleging a myriad of violations of

various constitutional rights. The district court adopted the magistrate judge’s

report and recommendation and dismissed plaintiff’s complaint with prejudice

under Fed. R. Civ. P. 12(b)(6). Because the legal sufficiency of a complaint is

a question of law, we review the Rule 12(b)(6) dismissal      de novo . See Sutton v.

Utah State Sch. for the Deaf & Blind     , 173 F.3d 1226, 1236 (10th Cir. 1999).

       Rule 12(b)(6) permits a court to dismiss a complaint when it fails to state

a claim upon which relief can be granted. “The complaint should not be

dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Hall v. Bellmon , 935 F.2d 1106, 1109 (10th Cir. 1991). In reviewing

the sufficiency of the complaint, we must presume the truthfulness of plaintiff’s

factual allegations and construe them in the light most favorable to him.     See id.

In addition, because plaintiff appears    pro se , we must construe his pleadings

liberally, holding him “to a less stringent standard than formal pleadings drafted


                                            -3-
by lawyers.” Id. at 1110. Guided by these standards, we affirm the district

court’s dismissal in part and reverse and remand in part.   1




                                    Excessive Force

       Plaintiff claims that defendants violated his Eighth Amendment rights by

using excessive force against him when he refused to submit to a haircut in

accordance with prison policy. When plaintiff was brought to the penitentiary,

officials informed him that, pursuant to prison policy, they were going to cut his

hair. Plaintiff objected, stating that he was an ordained minister in the “Church

of Christ Salvation Ministries” and that his naturalist religion prohibited him from

cutting his hair. Prison officials transferred plaintiff to the infirmary, where he

was locked in a cell while officials conferred. Shortly thereafter, Officer Painter

approached plaintiff’s cell, and plaintiff reiterated his religious objections to the

haircut. At that point several other officers, outfitted in body armor and carrying

shields and other extraction gear, approached plaintiff’s cell door. Upon seeing



1
       We address the issues plaintiff raised in his brief on appeal. To the extent
plaintiff raised issues in his complaint before the district court but did not argue
them on appeal, he has waived those issues.      See State Farm Fire & Cas. Co. v.
Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994). Specifically, plaintiff devoted a
substantial portion of his complaint to specific grievances he filed and the prison
officials’ treatment of those grievances. He does not pursue those complaints in
his brief on appeal and, therefore, we do not address them. We note, however,
that the district court found he failed to state a claim in regard to those issues and,
were we to address the issue, we would agree.

                                            -4-
the armored officers, plaintiff feared for his safety and agreed, under duress, to

proceed to the induction room for a haircut. In response, Officer Painter

instructed plaintiff to back up to the cell door, kneel down, and stick his ponytail

through the opening in the door. When plaintiff told Officer Painter that he could

not bend down because of a knee injury and that he would go to the induction

room for a haircut, Officer Painter ordered plaintiff to get away from the door.

The armored officers then entered plaintiff’s cell, and plaintiff pushed one of the

officers’ shields aside because the bolts protruding from the shield were pointing

at plaintiff’s eyes.

       The remaining armored officers entered the cell, tackled plaintiff, and

knocked him onto his back. Plaintiff rolled into a ball in an attempt to protect

himself from harm. One of the officers cuffed plaintiff’s right hand, and they

rolled plaintiff onto his stomach while pulling on the cuffed wrist. At that point,

plaintiff’s right arm was pinned underneath him and pulled across his chest to his

left shoulder. Two officers pinned down plaintiff’s legs and one pinned his right

side. Plaintiff alleged that Officer Holloway placed his feet against plaintiff’s

left hip and shoulder and deliberately and maliciously exerted full strength in

pulling on the empty handcuff with the effect of pulling plaintiff’s right hand past

his left




                                         -5-
shoulder, causing extreme pain. Plaintiff further alleged that

       [a]t least one other Officer was maliciously, sadistically, wilfully and
       wantonly kicking [him] in the tail-bone, and groin area, and another
       was repeatedly kicking [him] in the left hip and kidney area, at which
       time Sgt. Halter[] in a deliberate, intentional, violent, malicious,
       sadistic and barbaric manner, without regard for human life and with
       the intent to cause bodily harm, did a waist-high knee-drop directly
       landing at the center of the back of [plaintiff’s] neck, which due to
       his being pinned cause a twisting of [plaintiff’s] complete spine
       resulting in severe and immediate pain.

R. Vol. 1, tab 1 at 9. Plaintiff stated that “[t]hese actions were not necessary for

any restraint but were rather accomplished by . . . defendants for the specific

purpose of causing pain and injury to [plaintiff].”    Id. at 9-10.

       The officers then dragged plaintiff out of the cell, chained him into

a wheelchair, and transported him to the induction room where they cut his hair.

After the haircut, plaintiff was wheeled to the maximum security segregation

block, where he was unchained and thrown into a cell. Plaintiff alleged he was

“then yanked to his knees and Officer Halter slammed his head into the cell wall,

while he was ordered to strip.”    Id. at 10-11. Finally, plaintiff alleged that

       [w]hile attempting to comply with the order to strip [plaintiff’s]
       forehead was maliciously slammed into the wall twice more . . .,
       without any legitimate justification, but rather these three assaults
       were accomplished by these defendants for the specific purpose of
       causing pain and injury to [plaintiff] and have resulted in permanent
       scarring of his forehead.

Id. at 11. In addition to detailing these allegations in the factual summary portion

of his complaint, plaintiff summarizes the incidents in the portion of his

                                             -6-
complaint labeled “Claims For Relief” and alleges that the physical force used

by prison officials was deliberate, sadistic, and for the purpose of causing injury.

Id. at 36, paragraphs (b)-(g).

       “The use of excessive force by jail officials violates a prisoner’s rights

under the Eighth Amendment’s Cruel and Unusual Punishments Clause when the

prisoner is subjected to an ‘unnecessary and wanton infliction of pain.’”          Miller v.

Glanz , 948 F.2d 1562, 1566 (10th Cir. 1991) (quoting          Whitley v. Albers , 475 U.S.

312, 319 (1986)). In “non-emergency situations or when the State’s responsibility

to the prisoner does not clash with other equally important governmental

responsibilities, . . . deliberate indifference is the appropriate Eighth Amendment

standard.” Id. at 1566-67 (quotations and citations omitted). In the case of

a prison disturbance or emergency situation, however, the question is “whether

force was applied in a good-faith effort to maintain or restore discipline, or

maliciously and sadistically to cause harm.”          Hudson v. McMillian , 503 U.S. 1, 7

(1992) (adopting inquiry set out in     Whitley ). In finding that plaintiff failed to

state a claim, the district court applied the     Whitley test to all of plaintiff’s

allegations of excessive force. We agree that the         Whitley inquiry governs at least

the analysis of plaintiff’s claim of excessive force that occurred in the infirmary

cell. We are unable to determine from the complaint, however, what standard

should govern the claim that officials used excessive force once plaintiff was in


                                                -7-
the segregation block cell after having his hair cut.     See Miller , 948 F.2d at 1567

(stating that the court was unable to determine from the complaint whether

prisoner continued to pose a legitimate threat to the officers and other prisoners

at the time prisoner alleged a second incident of excessive force and, therefore,

the court was unable to determine whether to apply the        Whitley standard or the

deliberate indifference standard).

       That does not deter our holding at this stage, however, because plaintiff’s

complaint, taken as true, sufficiently states a claim under either standard.   2



Plaintiff’s detailed allegations of force applied maliciously and sadistically by the

various prison officials for the purpose of causing harm are sufficient to state

a claim under even the heightened        Whitley standard. See id. , 948 F.2d at 1567

(holding that specific allegations of force similar to those plaintiff alleges here

were sufficient to state a claim under     Whitley standard). On remand, it will be for

the district court to make a further determination as to which standard applies to

the claim of excessive force that occurred in the segregation block after plaintiff’s

hair had been cut.   See id. Then, of course, the district court can conduct

summary judgment proceedings and enter the appropriate findings and order at

that stage.


2
      The complaint states a claim for excessive force only against those
defendants by whom plaintiff alleged personal involvement, namely defendants
Painter, Holloway, Halter, Smith, and Martinez.

                                              -8-
                                    Religious Freedom

       Plaintiff alleges that defendants violated his First Amendment right to

practice his religion by cutting his hair. He stated in his complaint that he

objected to the haircut on religious grounds, he informed prison officials it was

against his beliefs, and he was an ordained minister in the Church of Christ

Salvation Ministries, a naturalist-based religion. These conclusory allegations

justify the district court’s dismissal for failure to state a claim. “Plaintiff did not

accompany his allegation with any details about his religious faith, nor did he

allege what tenet of his faith required that he refuse the [haircut].”      Dunn v.

White , 880 F.2d 1188, 1197 (10th Cir. 1989).       3
                                                        Neither did he include those




3
        Plaintiff argues that the deficiencies in his complaint could be cured by
allowing him to amend and that dismissal with prejudice was, therefore, improper.
It is true that dismissal without prejudice is the preferred route where a
“plaintiff’s factual allegations are close to stating a claim but are missing some
important element” and the district court dismisses claims     sua sponte .
Reynoldson v. Shillinger , 907 F.2d 124, 126 (10th Cir. 1990);     see also Hall ,
935 F.2d at 1110. The same reasoning does not apply in a situation such as in this
case, however, where plaintiff had notice of his deficiencies by way of a motion
to dismiss, plaintiff’s response to the motion did not cure the deficiencies,
plaintiff did not cure the deficiency in his objections to the magistrate judge’s
report and recommendation, and he made no attempt to amend his complaint
before the district court ruled on the motion to dismiss.    Cf. Hall , 935 F.2d
at 1109-10 (stating that 12(b)(6) dismissal following a motion to dismiss gives
plaintiff notice and opportunity to amend his complaint);     Neitzke v. Williams ,
490 U.S. 319, 329-30 (1989) (same).

                                              -9-
necessary details in his objections to the magistrate judge’s report and

recommendation.


                                      Due Process

       Plaintiff complains that defendants took certain property from him and that

the property deprivation violated his right to due process. If an adequate state

remedy exists for the deprivation of the property, plaintiff cannot claim a due

process violation.   See Hudson v. Palmer , 468 U.S. 517, 531-33 (1984). Plaintiff

argued in his objections to the magistrate’s report and recommendation that he

has no adequate state postdeprivation remedy because the Wyoming

Governmental Claims Act grants immunity to public employees. Although

the district court did not identify the adequate state remedy in its finding that

plaintiff failed to state a claim of a due process violation because an adequate

state remedy existed, we note that the Wyoming Governmental Claims Act waives

immunity in certain instances.    See Wyo. Stat. §§ 1-39-112, 1-39-103(a)(iii), and

7-2-101(a)(iv)(H); see also Hudson , 468 U.S. at 536 n.15. In addition, the prison

grievance procedure, with which plaintiff is intimately familiar, provides an

adequate state remedy.     See id. ; Cavender v. Uphoff , No. 96-8067, 1997 WL

602418, at **1 (10th Cir. Sept. 26, 1997) (unpublished). The district court was

correct in dismissing plaintiff’s claim of a due process violation resulting from

deprivation of property.

                                          -10-
                      Deliberate Indifference to Medical Needs

       Plaintiff complains that his Eighth Amendment rights were violated by

defendants’ deliberate indifference to his medical needs. “A medical staff’s

deliberate indifference to serious medical needs of prisoners constitutes a

violation of the Eighth Amendment.”       Green v. Branson , 108 F.3d 1296, 1303

(10th Cir. 1997) (quotation omitted). The deliberate indifference standard has

two components:

       an objective component requiring that the pain or deprivation be
       sufficiently serious; and a subjective component requiring that the
       offending officials act with a sufficiently culpable state of mind.
       With regard to the subjective component, allegations of inadvertent
       failure to provide adequate medical care or of a negligent diagnosis
       simply fail to establish the requisite culpable state of mind.

Miller , 948 F.2d at 1569 (citations and quotations omitted). We agree with the

district court that some of plaintiff’s complaints can be read as allegations that

the medical provider was negligent in his or her diagnosis or choice of therapy,

and that those complaints are not actionable.     See Green , 108 F.3d at 1303.

As plaintiff states on appeal, however, not all his allegations of deliberate

indifference can be characterized as claims of negligent diagnosis or choice of

therapy. In fact, most of his claims focus on the delay in diagnosis or treatment

of his medical needs. Although we have held that “delay in providing medical

care may constitute a violation of the Eighth Amendment,” the circumstances


                                           -11-
“have frequently involved life-threatening situations and instances in which it is

apparent that delay would exacerbate the prisoner’s medical problems,” and

instances where “the delay results in a lifelong handicap or a permanent loss.”

Hunt v. Uphoff , 199 F.3d 1220, 1224 (10th Cir. 1999). Plaintiff’s complaint

alleges specific facts from which we conclude that any delay in medical treatment

did not result in a violation of plaintiff’s Eighth Amendment rights.


                                   Access to Courts

      Plaintiff claims defendants violated his right to access to the courts by

denying him legal materials while he was in isolation. To state a claim for denial

of a right of access, plaintiff must also establish injury resulting from the denial.

See Lewis v. Casey , 518 U.S. 343, 351-54 (1996). The magistrate judge found

that, other than stating he was denied legal materials in isolation, plaintiff did not

indicate how he was injured by defendants’ denying him access to the legal

materials. In his objections to the magistrate judge’s report and recommendation,

however, plaintiff enumerated seven specific forms of injury that he alleged

resulted from the denial of access to legal materials. R. Vol. I, tab 56 at 8. The

district court, in its order adopting the report and recommendation, made no

mention of the denial of access claim and did not acknowledge the specific

allegations of injury enumerated in plaintiff’s objections to the magistrate judge’s

report and recommendation. We express no opinion as to whether the injuries

                                          -12-
alleged meet the standards of   Lewis , but we are unable to discern whether the

district court considered the specific allegations of injury and rejected them as

insufficient under Lewis , or whether it consciously chose not to consider the

allegations in the objections to the magistrate’s report and recommendation for

whatever reason. On remand the district court should address this issue.


                                          Threats

      Plaintiff alleged that defendants threatened him against filing grievances

and in connection with denying him access to the courts. The district court was

correct that plaintiff failed to state a claim upon which relief could be granted.

To the extent that plaintiff complains that threats by prison officials violated his

right to be free from cruel and unusual punishment, because plaintiff has not

alleged the threats instilled in him “terror of instant and unexpected death,”

he does not state a claim under § 1983.    Northington v. Jackson , 973 F.2d 1518,

1524 (10th Cir. 1992) (citing   Collins v. Cundy , 603 F.2d 825, 827 (10th Cir.

1979)).




                                           -13-
                               Conditions of Confinement

       Plaintiff alleged in his complaint that the conditions of his confinement

in segregation violated his Eighth Amendment right to be free from cruel

and unusual punishment. He alleged that he was housed in segregation for

twenty-four days and was denied toilet paper for the first four days. He alleged

that he was forced to lay on the cold concrete floor eighteen hours a day and was

given a feces-smeared mattress with holes in it and half of a blanket for the

remaining six hours a day. In addition, he claimed he was denied all personal

hygiene items and that soap and shampoo were provided only every three days

when he was allowed to shower. Finally, he alleged deprivation of socks, briefs,

corrective lenses, eye drops, dentures, toothbrush, and toothpaste.

       The standard by which we measure whether conditions of confinement

violate a prisoner’s Eighth Amendment rights is deliberate indifference.

See Mitchell v. Maynard , 80 F.3d 1433, 1442 (10th Cir. 1996). Conditions of

confinement must be considered as a whole.         See id. A condition of confinement

violates a prisoner’s constitutional rights if it deprives him “of the minimal

civilized measure of life’s necessities.”   Id. (quotation omitted).

       In his report and recommendation, the magistrate judge acknowledged only

the allegation that plaintiff was given a feces-smeared mattress. The magistrate

judge found that plaintiff had not stated a claim that the segregation conditions

                                            -14-
violated the Eighth Amendment because plaintiff did not allege that he brought

the condition of his mattress to the attention of prison officials.   See Farmer v.

Brennan , 511 U.S. 825, 836 (1994) (holding that prison official can be found

liable under the Eighth Amendment for denying inmate humane conditions of

confinement only if official knows of and disregards excessive risk to inmate

safety). However, plaintiff stated in his complaint that he had filed a grievance

regarding the condition of his segregation confinement and that he had exhausted

all his administrative remedies with respect to all his complaints. In addition, in

his objections to the magistrate judge’s report and recommendation, plaintiff

stated that he did, in fact, complain about the mattress in his grievance regarding

the conditions of his segregated confinement. On remand, the district court

should revisit plaintiff’s Eighth Amendment claim and address all of the alleged

deprivations.   4




4
       We note that the magistrate judge did address the alleged loss of privileges
while in segregation, and we agree that plaintiff did not state a claim for violation
of due process rights in that regard. See Sandin v. Conner , 515 U.S. 472, 486
(1995). The magistrate judge did not, however, with the exception of the
feces-smeared mattress allegation, acknowledge plaintiff’s other specific
allegations surrounding his conditions of confinement claim, including the lack
of toilet paper, personal hygiene items, and clothing.

       Further, we note that, with regard to the alleged deprivation of those items,
plaintiff asserts this conditions of confinement claim against only defendant
Halter.

                                             -15-
                                      Conspiracy

      We agree with the district court that plaintiff has failed to state a claim for

civil conspiracy under § 1983 because he did not “allege specific facts showing

an agreement and concerted action amongst the defendants.”       Tonkovich v. Kansas

Bd. of Regents , 159 F.3d 504, 533 (10th Cir. 1998). Plaintiff merely alleged many

unlawful acts by various defendants and stated, without any specific facts

evidencing an agreement among the various defendants, that they conspired

against him.


                                  State Law Claims

      The district court declined to exercise supplemental jurisdiction over

plaintiff’s state law claims because it dismissed all plaintiff’s § 1983 claims.

Because we hold that plaintiff’s complaint states a federal claim under § 1983,

on remand the district court should revisit whether to exercise jurisdiction over

the pendant state law claims.   See Miller , 948 F.2d at 1568.




                                          -16-
                                     Conclusion

      We AFFIRM the district court’s dismissal for failure to state a claim

plaintiff’s allegations of: (1) violation of his First Amendment right to religious

freedom; (2) violation of his due process rights resulting from the deprivation

of property and the conditions of his segregation confinement; (3) violation of

his Eighth Amendment rights as a result of deliberate indifference to his

medical needs; (4) violation of constitutional rights as a result of threats; and

(5) conspiracy. We hold that plaintiff stated a claim for violation of his Eighth

Amendment rights resulting from prison officials’ use of excessive force and that

the district court’s dismissal of this claim under Rule 12(b)(6) was premature.

We REVERSE the district court’s dismissal of plaintiff’s excessive force claim

and REMAND for further proceedings. We also REVERSE the district court’s

Rule 12(b)(6) dismissal of plaintiff’s claims that defendants denied him access to

the courts and that they violated his Eighth Amendment rights as a result of the

conditions of his segregation confinement. We also REMAND those claims for

further consideration consistent with this order and judgment.


                                                     Entered for the Court


                                                     Stephen H. Anderson
                                                     Circuit Judge


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