                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                               DEC 4 1997
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 CARLOTTA ANN ROSS,

               Plaintiff-Appellant,

 v.                                                  Case No. 97-1200

 HAL SANDBERG,                                       (D.C. 94-B-1180)
                                                     (District of Colorado)
               Defendant-Appellee.



                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has unanimously

determined 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.

      Inmate Carlotta Ross, proceeding in forma pauperis, brought this action

under 42 U.S.C. § 1983 against Officer Sandberg, who, at the time of the alleged


      *
               This order and judgment is not binding precedent, except under the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.
events, was a Maintenance Officer at the Colorado Women’s Correctional Facility

where Ms. Ross was incarcerated. Ms. Ross alleges violations of the Eighth and

Fourteenth Amendments, arising from Officer Sandberg’s alleged assault upon

her with a plank of wood. Ms. Ross seeks $250,000,000.00 in compensatory

damages. The district court adopted the magistrate judge’s recommendations and

granted summary judgment in favor of Officer Sandberg. Ms. Ross appeals, and

we affirm.

      “We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).”

Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). Summary

judgment is appropriate only if the uncontroverted material facts establish that the

moving party is entitled to judgment as a matter of law. See Russillo v.

Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). We construe the record in

the light most favorable to the nonmoving party. See Wolf, 50 F.3d at 796.

      Ms. Ross worked in the maintenance building of the correctional facility.

She alleges that she and Officer Sandberg had worked in the same location for at

least four weeks. The project they worked on involved welding or the use of

metal cutting tools. Ms. Ross alleges that when Mr. Sandberg entered the

building, he picked up a 2" x 2" x 4' plank of wood and, without warning or

provocation, “rammed” it into her lower back. Rec. doc. 64, Ex. A at ¶ 10. He


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then threatened her by stating, “I’m going to shut you the fuck down,” id. at ¶ 11,

and Ms. Ross responded by “yell[ing] at Mr. Sandberg in response to the attack.”

Id.

      Although Officer Sandberg’s version of the story differs, he admits he

“touched” Ms. Ross in the back with a 2" x 2" baluster. Rec. doc. 54, Ex. A at 27

(deposition of Officer Sandberg). He claims he was working alongside Ms. Ross,

who kept encroaching on his work area and bumping into him. He asked her to

move on several occasions. Finally, he nudged her with the baluster to warn her

not to bump into him anymore and said “‘this [nudging] is the least that can

happen to you.’” Id. Ms. Ross then “started raising hell” and claimed that he hit

her. Id. at 32.

      Ms. Ross went to the infirmary for treatment and reported the incident to

the medical staff. She complained of pain in the mid-back area and stated she had

intermittent lower back pain since an earlier fall. The medical report states “[n]o

visible red mark, abrasion or muscle spasm detected.” Rec. doc. 54, Ex. C attach.

(Med. Rec., dated February 11, 1994). A medical report from an examination

several days later notes “no areas of redness, abrasions, or bruises.” Id. (Med.

Rec., dated February 14, 1994).

      At the request of Officer Sandberg, Ms. Ross underwent an independent

evaluation in July 1995. The report prepared after this evaluation indicates that


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Ms. Ross suffers from spondylosis and chronic pain. Its states that “it is unlikely

that a blow to the back would cause her significant spondylosis. It may cause her

some tissue injury, or bring about an exacerbation of a pre-existing problem, but

certainly a blow to the back would not cause her to have significant lumbar

spondylosis immediately.” Rec. doc. 54, Ex. D attach. at 4 (Letter to Ms. Miriam

Karkanen, dated July 26, 1995).

      The record does not indicate that Ms. Ross suffered any bruising, abrasions,

or redness from the contact with the baluster. We recognize that to assert an

Eighth Amendment claim, a serious injury is not required, but it is certainly

relevant to our inquiry. See Hudson v. McMillian, 503 U.S. 1, 7 (1992) (“The

absence of serious injury is . . . relevant to the Eighth Amendment inquiry, but

does not end it.”).

      “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments

necessarily excludes from constitutional recognition de minimis uses of physical

force, provided that the use of force is not of a sort ‘repugnant to the conscience

of mankind.’” Id. at 9-10 (quoting Whitley v. Albers, 475 U.S. 312, 327 (1986))

(internal citations omitted). “[A] prison guard’s use of force against an inmate

constitutes ‘cruel and unusual punishment’ when it involves ‘the unnecessary and

wanton infliction of pain.’” El’Amin v. Pearce, 750 F.2d 829, 831 (10th Cir.

1984) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). The ramming of an


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inmate with a baluster might rise to this level, but the record does not support a

finding that that is what happened here.

      Mr. Sandberg’s actions were potentially dangerous and should not be

approved. However, not “every malevolent touch by a prison guard gives rise to a

federal cause of action.” Hudson, 503 U.S. at 9. We agree with the magistrate

judge that there is no evidence that Officer Sandberg used force in a malicious or

sadistic manner, such that contemporary standards of decency were violated. See

Rec. doc. 71 at 10; Hudson, 503 U.S. at 9. This touching may be a simple battery,

but it does not give rise to a constitutional claim. Therefore, we need not address

Officer Sandberg’s qualified immunity defense.

      Accordingly, we AFFIRM the district court’s grant of summary judgment to

Officer Sandberg.

      The mandate shall issue forthwith.



                                               Entered for the Court,



                                               Robert H. Henry
                                               Circuit Judge




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