                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                           JUL 20 2000
                                   TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 LOUIE ARCHULETA,

           Plaintiff-Appellant,
 v.                                                       No. 00-2033
 FLOYD MARSHALL; ESTER                          (D.C. No. CIV-98-449-MV/DJS)
 CADENA; ANTHONY DELGADO;                                  (D.N.M.)
 RUBEN ARCHULETA; JAMES
 MULHERON, Sergeant; Correctional
 Officers, Southern New Mexico
 Correctional Facility,

           Defendants-Appellees.




                              ORDER AND JUDGMENT          *




Before SEYMOUR , Chief Judge, EBEL and BRISCOE, 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.


       This order and judgment is not binding precedent, except under the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 Louie Archuleta appeals the district court’s order granting

defendants summary judgment on his claims of Eighth Amendment violations,

brought under 42 U.S.C. § 1983. We exercise jurisdiction pursuant to 28 U.S.C.

§ 1291 and affirm in part, reverse in part, and remand for further proceedings.

                                            I.

      Archuleta was incarcerated at the Southern New Mexico Correctional

Facility in Las Cruces, New Mexico, when he filed this § 1983 complaint against

defendants Floyd Marshall, Ester Cadena, James Mulheron, Anthony Delgado,

Ruben Archuleta, and others on April 16, 1998. Archuleta alleged,         inter alia ,

that his Eighth Amendment rights were violated by defendants’ use of excessive

force. Archuleta claimed that on January 20, 1998, Marshall, Cadena, and

Mulheron attacked and beat him, resulting in bodily harm, pain, and injuries to

his right hand center finger, thumb, right ankle, and left hand center fingernail.

On April 29, 1998, Archuleta filed a second § 1983 complaint, claiming,         inter

alia , that on March 4, 1998, Delgado and Ruben Archuleta attacked him, kicked

and struck him, and caused pain and permanent damage to his back, right side

hernia, left shoulder, right hand ligaments, and thumb.   1
                                                              The district court treated


      1
        On July 13, 1998, the district court  sua sponte dismissed Archuleta’s
claims of due process violations, denial of legal access, denial of medical
treatment, conspiracy, unsanitary conditions, and denial of nutritious diet. The
district court declined to exercise jurisdiction over Archuleta’s state law claims
                                                                        (continued...)

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the two complaints as a single action.

      Defendants filed a motion for summary judgment, contending they did not

use excessive force against Archuleta and Archuleta suffered no injuries from the

alleged force. Over Archuleta’s objection, the district court adopted the

magistrate’s recommendation, granted defendants’ motion for summary judgment,

and dismissed Archuleta’s complaint.

                                           II.

      We review the grant of summary judgment de novo, viewing the record in

the light most favorable to the nonmoving party.   White v. State of Colorado , 82

F.3d 364, 366 (10th Cir. 1996). “Summary judgment is appropriate only if there

are no genuinely disputed material issues of fact and the moving party is entitled

to judgment as a matter of law.”   Id. On appeal, Archuleta raises two issues: (1)

whether the district court applied the correct legal standard to his Eighth

Amendment excessive force claim, and (2) whether the district court failed to



      1
        (...continued)
and dismissed those claims without prejudice. The district court then dismissed
defendants the State of New Mexico, New Mexico Department of Corrections,
Jaysen Sena, Chris Barela, Jimmy Valles, Donna Simonetti, Eva (Elsie) Ramirez,
Ralph Robles, Richardo Salayandia, Rudy Ibarra, Estevan Flores, Lupe Martinez
Marshall, Ronald Lytle, and John Shanks. Archuleta does not appeal these
dismissals and has now waived any appeal of those issues.   See State Farm Fire &
Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (noting that failure to
raise issue in opening brief waives the point). Therefore, we affirm the district
court’s dismissal of these claims and defendants.

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consider evidence that he was denied medical care.



Proper standard for Eighth Amendment excessive force claim

       The magistrate recommended granting defendants’ motion for summary

judgment, concluding Archuleta failed to show he suffered more than de minimus

injury from defendants’ actions. The extent of the plaintiff’s injury is not

determinative in assessing whether an Eighth Amendment violation occurred.

The inquiry for Eighth Amendment excessive force claims by convicted prisoners

is “whether force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm.”       Northington v.

Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992) (citing        Hudson v. McMillian , 503

U.S. 1, 6 (1992)). “The ‘malicious and sadistic’ requirement applies regardless

of whether the plaintiff has alleged significant physical injury, for the ultimate

constitutional inquiry is directed at whether an unnecessary and wanton infliction

of pain has occurred.”   Id. (internal quotations omitted). The magistrate did not

address the alleged force or examine whether it was excessive, but based his

recommendation on the conclusion that Archuleta suffered only de minimus

injury. The district court erred in not considering the alleged force and in using

limited physical injury as the sole basis for granting summary judgment on

Archuleta’s Eighth Amendment excessive force claim.            See id. (noting that


                                             4
although “[t]he extent of injury may be relevant in determining whether

corrections officers unnecessarily and wantonly inflicted pain,” “its absence does

not end the inquiry”).

      The magistrate also noted that 42 U.S.C. § 1997e(e) requires more than de

minimus injury before Archuleta could bring the action. Section 1997e(e)

provides that “[n]o Federal civil action may be brought by a prisoner confined in

a jail, prison, or other correctional facility, for mental or emotional injury

suffered while in custody without a prior showing of physical injury.” Archuleta

sought declaratory and injunctive relief, compensatory damages for physical and

emotional injuries, and punitive damages. The physical injury requirement

applies only to Archuleta’s emotional injury claim. The case upon which the

magistrate relied, Siglar v. Hightower , 112 F.3d 191, 193 (5th Cir. 1997),

involved an interpretation of Eighth Amendment jurisprudence as requiring more

than de minimus injury. As noted above, this circuit has not taken that approach.

Further, e ven if Archuleta failed to make the required physical injury showing

under § 1997e(e), his request for declaratory and injunctive relief would remain,

and possibly his request for punitive damages.    See Perkins v. Kansas Dep’t of

Corrections , 165 F.3d 803, 808 & n.6 (10th Cir. 1999) (stating that “§ 1997e(e)

does not affect actions for declaratory or injunctive relief” and may not affect

punitive damages claims).


                                           5
Denial of medical care

       Archuleta alleges the district court failed to consider evidence that he was

denied medical care. The district court   sua sponte dismissed Archuleta’s denial

of medical care claim on July 13, 1998, concluding Archuleta failed to allege a

serious medical need. Archuleta’s notice of appeal to this court is limited to the

magistrate’s proposed findings and recommended disposition of September 29,

1999, and the district court’s order and judgment of January 25, 2000, neither of

which addressed the denial of medical care claims. In his reply brief, Archuleta

admits he did not raise the issue in his original lawsuit. Archuleta has not

preserved this issue for appeal.   See Fed. R. App. P. 3(c) (stating that the notice

of appeal must designate the order from which the appellant appeals);     Tele-

Communications, Inc. v. Commissioner      , 104 F.3d 1229, 1232 (10th Cir.1997)

(noting that “[g]enerally, an appellate court will not consider an issue raised for

the first time on appeal”).

                                          III.

       The judgment of the district court is AFFIRMED IN PART, REVERSED

IN PART, and REMANDED for further proceedings on Archuleta’s Eighth

Amendment excessive force claim.

                                                 Entered for the Court

                                                 Mary Beck Briscoe
                                                 Circuit Judge

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