                                                                                FILED
                                                                    United States Court of Appeals
                     UNITED STATES COURT OF APPEALS                         Tenth Circuit

                           FOR THE TENTH CIRCUIT                           January 9, 2020
                       _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 CHRISTOPHER E. THOMPSON,

       Thompson - Appellant,

 v.                                                         No. 19-3004
                                               (D.C. No. 5:17-CV-03203-HLT-KGG)
 OLUWATOSIN ORUNSOLU; MARIA                                  (D. Kan.)
 BOS; TIM SMITH; DAN SCHNURR;
 JOE NORWOOD,

       Defendants - Appellees.
                      _________________________________

                           ORDER AND JUDGMENT*
                       _________________________________

Before PHILLIPS, McHUGH, and EID, Circuit Judges.
                   _________________________________

      Christopher Thompson, a Kansas inmate appearing pro se,1 commenced this

action under 42 U.S.C. § 1983 against various officials with the Kansas Department

of Corrections (KDOC). The district court granted summary judgment for the

defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
         “Because [Thompson] is pro se, we liberally construe his filings, but we will
not act as his advocate.” James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013).
                                  BACKGROUND

      On July 2, 2017, KDOC Correctional Officers Oluwatosin Orunsolu and

Samantha Higbee were distributing meal trays to inmates in the El Dorado

Correctional Facility (EDCF). When Orunsolu and Higbee approached Thompson’s

cell, Thompson and his cellmate, Terry Fine, were standing at the door. Fine reached

through the food slot and grabbed Orunsolu. After Fine resisted orders to step back,

Orunsolu deployed a two- to three-second burst of pepper spray through the food slot

and into the cell, striking Fine in his midsection. The parties dispute whether

Thompson also was attempting to grab Orunsolu. But they agree Thompson was at

the back of the cell and no longer near the food slot when Orunsolu deployed the

pepper spray—either because, as the defendants alleged, he ran to the back of the cell

upon realizing Orunsolu intended to use pepper spray or because, as Thompson

alleges, he had already received his meal and was sitting on his top bunk.

      Immediately following the incident, Thompson and Fine were removed from

the cell, taken to the showers for decontamination, and checked by medical

staff. Thompson did not display or report any injuries. However, in a medical

request eighteen days later, he alleged his exposure to pepper spray on July 2 caused

him to fall out of his bunk and hurt his lower back. Medical staff scheduled an

appointment for him for the following day, but Thompson refused to attend.

      Over the next seven weeks, Thompson submitted numerous medical requests,

none of which referenced back pain or the July 2 incident. It was not until a medical

examination on September 8 that Thompson renewed his complaint about back pain

                                           2
or his allegation about falling from his bed. During this examination, Thompson

evidenced no gait dysfunction or radiation of pain to his lower extremities. On

October 2, Thompson returned to the clinic, complaining of back pain stemming from

an incident he said occurred “[a]pproximately one month” prior. R. Vol. 2 at 87.

During this examination, Thompson again denied having pain radiating to his lower

extremities, and he exhibited a normal range of motion. He also was able to walk

into the office and get on and off the exam table without assistance. Over the next

few months, Thompson returned to the clinic multiple times for alleged back pain.

He also filed a personal injury claim, which KDOC denied.

      In connection with the July 2 incident, both Thompson and Fine received

disciplinary reports charging them with battery and were placed in segregation.

KDOC found Fine guilty of battery for grabbing Orunsolu but dismissed Thompson’s

charge following a hearing on July 10. Thompson then sought to be removed from

segregation, but he was kept in segregation after officials “review[ed] [his]

disciplinary history” and “observ[ed] his behavior.” R. Vol. 1 at 34.

      Thereafter, Thompson filed an action against the defendants in their individual

capacities, claiming: (1) Orunsolu used excessive force in violation of the Eighth

Amendment; and (2) the other defendants violated his due process rights under the

Fourteenth Amendment by keeping him in segregation after the disciplinary report

was dismissed. The district court granted defendants’ motion for summary judgment

based on qualified immunity, finding Thompson failed to show either a constitutional

violation or clearly established law for either claim. Thompson timely appealed.

                                           3
                                      DISCUSSION

   I.       Standard of Review

         “We review the district court’s grant of qualified immunity on summary

judgment de novo.” Nelson v. McMullen, 207 F.3d 1202, 1205 (10th Cir. 2000). To

overcome a qualified immunity defense at the summary judgment phase, a plaintiff

must show: “(1) that the defendant violated his constitutional . . . right[], and (2) that

the constitutional right was clearly established at the time of the alleged unlawful

activity,” such that “every reasonable official would have understood that what he is

doing violates that right.” Estate of Reat v. Rodriguez, 824 F.3d 960, 964 (10th Cir.

2016) (internal quotation marks omitted). The latter “inquiry must be undertaken in

light of the specific context of the case, not as a broad general proposition.”

Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (internal quotation marks and citation

omitted). “If, and only if, plaintiff meets this two-part test does a defendant then bear

the traditional burden of the movant for summary judgment—showing that there are

no genuine issues of material fact and that he or she is entitled to judgment as a

matter of law.” Gutteridge v. Oklahoma, 878 F.3d 1233, 1238 (10th Cir. 2018)

(internal quotation marks omitted).

   II.      Analysis

         A. Eighth Amendment Claim

         Thompson first contends the district court erred in granting summary judgment

to Orunsolu on his Eighth Amendment excessive-force claim. We disagree.



                                            4
      “[C]laims of excessive force involving convicted prisoners arise under the

Eighth Amendment.” Estate of Booker v. Gomez, 745 F.3d 405, 419 (10th Cir.

2014). But not “every malevolent touch by a prison guard gives rise to a federal

cause of action.” Hudson v. McMillian, 503 U.S. 1, 9 (1992). Rather, an inmate

must satisfy “(1) an objective prong that asks if the alleged wrongdoing was

objectively harmful enough to establish a constitutional violation, and (2) a

subjective prong under which the plaintiff must show that the officials acted with a

sufficiently culpable state of mind,” such that the officials used the “force

maliciously and sadistically for the very purpose of causing harm, rather than in a

good faith effort to maintain or restore discipline.” Redmond v. Crowther, 882 F.3d

927, 936 (10th Cir. 2018) (internal quotation marks omitted). Relevant factors

include: (1) “the need for the application of force”; (2) “the relationship between the

need and the amount of force that was used”; (3) “the extent of injury inflicted”;

(4) “the extent of the threat to the safety of staff and inmates”; and (5) “any efforts

made to temper the severity of a forceful response.” Whitley v. Albers, 475 U.S. 312,

321 (1986) (internal quotation marks omitted).

      In assessing excessive-force claims, we have recognized that “a prison guard,

to maintain control of inmates, must often make instantaneous, on-the-spot decisions

concerning the need to apply force without having to second-guess himself.”

Sampley v. Ruettgers, 704 F.2d 491, 496 (10th Cir. 1983) (internal quotation marks

omitted). Therefore, “review of a claim of the use of excessive force in a prison is to

be deferential to the prison.” Green v. Branson, 108 F.3d 1296, 1300 (10th Cir.

                                            5
1997). In particular, “when prison officials must act to preserve internal order and

discipline, we afford them wide-ranging deference.” Redmond, 882 F.3d at 938

(internal quotation marks omitted). Although “[t]his deference does not insulate

from review actions taken in bad faith and for no legitimate purpose,” neither does it

permit courts to “freely substitute their judgment for that of officials who have made

a considered choice.” Id. (internal quotation marks omitted).

       Accepting, solely for summary judgment purposes, Thompson’s claim that the

effects of the pepper spray caused him to fall and injure his back,2 the undisputed

evidence shows that Orunsolu administered pepper spray “in a good faith effort to

maintain or restore discipline,” not “maliciously and sadistically for the very purpose

of causing harm.” Id. at 936 (internal quotation marks omitted). In particular, the

district court found—and Thompson has not challenged—that: (1) “Fine (Plaintiff’s

cellmate) reached through the cell’s food pass, grabbing Orunsolu,” R. Vol. 1 at 298;

and (2) Orunsolu responded first by “verbally instruct[ing] Fine to stop” and then,

when “Fine ignored Orunsolu’s orders,” “deploy[ing] a two to three second burst of

mace into Plaintiff’s cell, striking Fine in his midsection,” id. at 299.

       As we have recognized, “prisoners cannot be permitted to decide which orders

they will obey, and when they will obey them.” Redmond, 882 F.3d at 938 (internal

quotation marks omitted). Based on Fine’s conduct, the district court properly found

that Orunsolu’s use of force was justified and that the amount of force was not


       2
       The district court found “any injury . . . was minimal.” R. Vol. 1 at 299.
And as outlined above, the record on Thompson’s back injury is mixed, at best.
                                            6
disproportionate to the need. Thompson’s secondhand exposure to the pepper spray

does not alter that calculus. The court, therefore, properly concluded that Thompson

failed to satisfy his burden under the first prong of qualified immunity of showing a

constitutional violation. We, therefore, need not reach the second prong. See Hinton

v. City of Elwood, 997 F.2d 774, 780 (10th Cir. 1993).

      Thompson advances several procedural arguments in an effort to defeat

summary judgment, including: (1) the defendants’ reply brief was untimely and, thus,

the material facts he listed in his response should have been deemed admitted;

(2) Orunsolu committed “purjury” [sic] and, therefore, “any claim to immunity

automatically fails,” Aplt. Opening Br. at 2; and (3) the defendants submitted as

exhibits several medical records pertaining to a different inmate. Because Thompson

offers no authority for these arguments, we need not address them. See United States

v. Banks, 451 F.3d 721, 728 (10th Cir. 2006). Accordingly, the court properly

granted summary judgment in favor of Orunsolu based on qualified immunity.

      B. Fourteenth Amendment Claim

      Thompson next contends the defendants other than Orunsolu violated his due

process rights under the Fourteenth Amendment by keeping him in segregation after

his discipline related to the July 2 incident was dismissed. We disagree.

      KDOC Corrections Managers Tim Smith and Maria Bos approved Thompson’s

initial placement in segregation following the July 2 incident and disciplinary report

charging him with battery. After his disciplinary report was dismissed, Thompson

submitted grievances to various KDOC officials regarding his continued placement in

                                           7
segregation, insisting he should be returned to the general population. Thompson

alleged both Smith and Bos used their respective positions “to keep [him] in

segregation after the initial reason for placement became moot.” R. Vol. 1 at 10, 11.

He also brought his due-process claim against Joe Norwood, then Secretary of

KDOC, and Dan Schnurr, then Acting Warden at EDCF. Thompson insists KDOC

“chose to punish [him]” for the July 2 incident even though the disciplinary report

was dismissed. Aplt. Opening Br. at 2. He contends they kept him in segregation for

past actions for which his punishment had already been served and that his

placement, therefore, was “arbitrary and capricious.” Id. at 3.

      “Individual liability under § 1983 must be based on personal involvement in

the alleged constitutional violation.” Gallagher v. Shelton, 587 F.3d 1063, 1069

(10th Cir. 2009) (internal quotation marks omitted)). The district court correctly

determined Thompson failed to show personal participation by any of the defendants.

      The undisputed evidence showed Bos and Smith approved Thompson’s initial

placement in segregation, but there was no evidence they participated in the decision

to keep him there after the discipline was dismissed. And although he sued Norwood

and Schnurr based on their supervisory positions and “Respondeat Superior,”

R. Vol. 1 at 11 (emphasis omitted), § “1983 does not authorize liability under a

theory of respondeat superior,” Brown v. Montoya, 662 F.3d 1152, 1164 (10th Cir.

2011). Instead, he needed to “show an affirmative link between the supervisor and

the constitutional violation,” requiring: “(1) personal involvement, (2) sufficient

causal connection, and (3) culpable state of mind.” Cox v. Glanz, 800 F.3d 1231,

                                           8
1248 (10th Cir. 2015) (internal quotation marks omitted). Thompson produced no

such evidence. Although he correctly notes both the Warden’s Office and the

Secretary of Corrections were involved in the denial of his grievance,3 “a denial of a

grievance, by itself without any connection to the violation of constitutional rights

alleged by plaintiff, does not establish personal participation under § 1983.”

Gallagher, 587 F.3d at 1069; see, e.g., Stewart v. Beach, 701 F.3d 1322, 1328

(10th Cir. 2012) (finding the warden’s knowledge of the alleged violation when he

denied a grievance was insufficient to show personal participation). Accordingly, the

court properly granted summary judgment on Thompson’s due-process claim.4

                                   CONCLUSION

      We affirm the district court’s judgment. We grant Thompson’s motion to

proceed without prepayment of fees but remind him of his continuing obligation to

make partial payments until the filing fee has been paid in full.


                                            Entered for the Court


                                            Gregory A. Phillips
                                            Circuit Judge

      3
        Thompson also notes his personal injury claim was denied by both the
Warden and the Secretary. But the personal injury claim related solely to his alleged
back injury from the July 2 incident, not his continued confinement in segregation.
      4
         The court also found: (1) “the evidence regarding Plaintiff’s criminal and
institutional history support[ed] the decision to keep Plaintiff in segregation even
after the charges related to the use of force were dismissed,” R. Vol. 1 at 303; and
(2) Thompson failed to show the law was clearly established “that the Fourteenth
Amendment was violated by the particular facts presented here,” id. at 304. Because
he failed to demonstrate personal participation, we need not reach these issues.
                                           9
