                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                        June 20, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 EZEK IEL P. R HO TEN ,

               Plaintiff - Appellant,                    No. 07-3064
          v.                                           06-CV-3065-SAC
 ROGER W ERHOLTZ, Secretary of                        (D .C. No. D. Kan.)
 Corrections, Kansas Department of
 Corrections; W AY NE L.
 CUM M INGS, Secretary Designate,
 Kansas Department of Corrections;
 DAVID M cKUNE, W arden, Lansing
 C orrectional Facility; (FN U )
 B RU N SEN ; (FN U ) N EED U M; (FNU)
 TRAINER, Correctional Officers,
 Lansing C orrectional Facility; (FNU)
 FA YGEN, Unit Team, Lansing
 Correctional Facility,

               Defendants - Appellees.



                            OR D ER AND JUDGM ENT *


Before KELLY, M U RPH Y, and O’BRIEN, Circuit Judges.




      Ezekiel P. Rhoten, appearing pro se and in form a pauperis, appeals from



      *
        This order and judgment is not binding precedent except under the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.
the district court’s dismissal of his civil rights complaint. 1 W e affirm.

      On M arch 2, 2006, Rhoten filed a 42 U .S.C. § 1983 complaint against

several Kansas prison officials alleging violations of the Eighth Amendment and

Kansas law. Specifically, he alleged Correctional Officer Brunson, while

conducting a pat-down search of his person, “slammed [him] against the wall[,]

squeezed [his] nipples real hard [,] squeezed [his] buttocks, and pulled on [his]

testicles real hard causing [him] a great deal of discomfort and pain.” (R . Doc. 1

at 7.) He further alleged that when he subsequently sought a pass to seek medical

treatment for his pain, Brunson refused to give him one. Rhoten filed several

prison grievances based on Brunson’s conduct. Prison officials investigated the

incident. As part of that investigation, Brunson issued a statement. He said he

conducted a pat-down search of Rhoten’s person based on Rhoten’s behavior

within the unit. 2 W hen Brunson started to conduct the pat-down search at

Rhoten’s arm pits, Rhoten turned to face Brunson and told him not to touch him

in that manner. Brunson denied touching/squeezing Rhoten’s buttocks or

testicles. Prison authorities found Brunson credible and denied Rhoten relief.

They also found Brunson did not deny Rhoten medical treatment but rather

advised him to report to sick call, which is the appropriate procedure for non-


      1
       W e liberally construe pro se pleadings. Ledbetter v. City of Topeka, Kan.,
318 F.3d 1183, 1187 (10th Cir. 2003).
      2
         Prison policy permits staff members to search inmates at any time, with
or w ithout consent.

                                           -2-
medical emergencies. Based on the record, Rhoten w as seen by a prison doctor

two hours after seeking medical treatment. The doctor found no evidence of

injury to Rhoten’s genitalia and pubic area and Rhoten’s groin and scrotum exam

was normal. However, because Rhoten complained of pain to the right groin and

scrotum, the doctor prescribed Tylenol. The district court dismissed Rhoten’s

Eighth Amendment claims under 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state

a claim upon which relief may be granted. It declined to exercise supplemental

jurisdiction over his state law claims.

      W e review de novo a district court’s dismissal of a complaint for failure to

state a claim under § 1915(e)(2)(B)(ii), accepting the complaint’s allegations as

true and construing them, and any reasonable inferences that might be drawn from

them, in the light most favorable to the plaintiff. Perkins v. Kan. Dep’t of Corrs.,

165 F.3d 803, 806 (10th Cir. 1999). Dismissal is proper only where it is obvious

that the plaintiff cannot prevail on the facts he has alleged and it would be futile

to give him an opportunity to amend. Id. “W e review the district court’s decision

to decline supplemental jurisdiction for an abuse of discretion.” Exum v. United

States O lym pic C om m ., 389 F.3d 1130, 1138 (10th Cir. 2004).

      “[T]he unnecessary and wanton infliction of pain constitutes cruel and

unusual punishment forbidden by the Eighth Amendment.” Hudson v. M cM illian,

503 U.S. 1, 5 (1992). To determine whether a prison official’s use of force was

“unnecessary and wanton,” we ask “whether [the] force was applied in a

                                          -3-
good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.” Id. at 6-7. W e consider “the need for [the use of] force, the

relationship between that need and the amount of force used, the threat reasonably

perceived by the responsible officials, and any efforts made to temper the severity

of a forceful response.” Id. at 7 (quotations omitted). Although the extent of the

inmate’s injury is also relevant, an inmate need not show a “significant injury” or

a certain level or type of injury to state a claim. Id. at 7, 9; see United States v.

LaVallee, 439 F.3d 670, 688 (10th Cir. 2006). However, not “every malevolent

touch by a prison guard gives rise to a federal cause of action.” Hudson, 503 U.S.

at 9. De minimis uses of physical force are excluded from the cruel and unusual

punishment inquiry unless “repugnant to the conscience of mankind.” Id. at 9-10;

Northington v. Jackson, 973 F.2d 1518, 1524 (10th Cir. 1992).

      Here, even accepting Rhoten’s allegations as true, we agree with the district

court that Brunson’s use of force does not state an Eighth Amendment violation.

Rather, it w as de minimis. Norton, 432 F.3d at 1156 (grabbing and twisting of

inmate’s neck was not sufficiently objectively harmful enough to establish an

Eighth Amendment excessive force claim); Reed v. Smith, No. 97-6341, 1999 W L

345492, at *4 (10th Cir. June 1, 1999) (unpublished) (inmate’s allegations that

prison officials grabbed him, tried to ram him into a wall and dragged him while

walking him through the prison were insufficient to state a Eighth Amendment




                                           -4-
excessive force claim). 3 M oreover, although not dispositive, the medical evidence

shows Brunson’s use of force did not result in injury, further supporting our

conclusion it w as not excessive.

      Rhoten’s Eighth Amendment claim based on Brunson’s refusal to give

Rhoten a pass to seek medical treatment also fails. Rhoten was not denied

medical treatment; in fact, he was seen by a doctor within two hours of seeking

treatment. N or w as his pain sufficiently serious. Estelle v. Gamble, 429 U.S. 97,

104-05 (1976) (holding the Eighth Amendment prohibits “deliberate indifference

to a prisoner’s serious illness or injury”) (emphasis added). Because the district

court correctly dismissed Rhoten’s Eighth Amendment claims, it did not abuse its

discretion in declining to exercise supplemental jurisdiction over his state law

claims. See 28 U.S.C. § 1367(c)(3) (stating a district court may decline to

exercise supplemental jurisdiction over a state law claim if it “has dismissed all

claims over which it has original jurisdiction”); Exum, 389 F.3d at 1138-39.

      AFFIRM ED.


                                               ENTERED FOR THE COURT


                                               Terrence L. O’Brien
                                               Circuit Judge



      3
          Unpublished opinions are not binding precedent and citation to them is
disfavored. W e mention Reed only because of its persuasive value. See 10 TH
C IR . R. A PP . P. 32.1(A).

                                         -5-
