                      UNITED STATES COURT OF APPEALS
Filed 12/20/96
                             FOR THE TENTH CIRCUIT



    EUGENE NELSON,

                Plaintiff-Appellant,

    v.                                                No. 96-2001
                                               (D.C. No. CIV 92-730 WWD)
    DEAN JARAMILLO, Sgt., in his                         (D.N.M.)
    official and personal capacity; JOHN
    SHANKS, Warden, in his official and
    personal capacity; RICHARD
    BARELLA, Lieutenant, in his official
    and personal capacity; JAMES H.
    WHITE, Major, in his official and
    personal capacity; DANIEL
    JARAMILLO, Sgt., in his official and
    personal capacity; CARLOS TOERS-
    BIJNS, Associate Warden,

                Defendants-Appellees.




                             ORDER AND JUDGMENT *



Before PORFILIO, ALARCON, ** 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      This order and judgment is not binding precedent, except under the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.
**
     Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
      After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.

      Plaintiff appeals from the magistrate judge’s judgment, see 28 U.S.C.

§ 636(c)(3), entered in favor of defendants, following trial, on plaintiff’s 42

U.S.C. § 1983 claims asserting a prison guard used excessive force against

plaintiff, in violation of the Eighth Amendment, and the ensuing prison

investigation of the incident was inadequate. Plaintiff argues that the magistrate

judge erred in concluding that plaintiff had suffered no constitutional deprivation

and also challenges several factual findings. Reviewing the magistrate judge’s

factual findings for clear error and his legal determinations de novo, see Neece v.

IRS, 96 F.3d 460, 464 (10th Cir. 1996), we affirm.

      “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.” Hudson v. McMillian, 503 U.S. 1, 9-10 (1992)(quotations omitted).

In light of the magistrate judge’s factual finding that the guard, during the course

of a routine pat down search and for no reason, struck plaintiff in the back with

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“relatively light force,” Appellant’s App. at 2, 5, plaintiff failed to establish more

than a de minimis use of force. Because this de minimis use of force, while not to

be condoned, is not “repugnant to the conscience of mankind,” we affirm the

magistrate judge’s decision entering judgment for defendants on the Eighth

Amendment claim. See United States v. Taylor, 97 F.3d 1360, 1364 (10th Cir.

1996)(despite trial court’s failure to make specific factual findings, appellate

court is free to affirm on any grounds for which there is sufficient record to

permit conclusions of law).

      Plaintiff argues that the magistrate judge’s finding that the blow was

“relatively light” is clearly erroneous. “A finding of fact is not clearly erroneous

unless it is without factual support in the record, or if the appellate court, after

reviewing all the evidence, is left with the definite and firm conviction that a

mistake has been made.” Zimmerman v. Sloss Equip., Inc., 72 F.3d 822, 825

(10th Cir. 1995)(quotation omitted). The record on appeal, however, contains

only brief and sporadic excerpts from the trial transcript, which do not provide a

sufficient basis for us to determine that this factual finding was clearly erroneous.

E.g., Rogers v. United States, 91 F.3d 1388, 1394 (10th Cir. 1996).

      Plaintiff’s next argument, that prison officials failed to conduct an adequate

investigation, fails to assert a basis for § 1983 relief. E.g., Buckley v. Barlow,

997 F.2d 494, 495 (8th Cir. 1993); Mann v. Adams, 855 F.2d 639, 640 (9th Cir.


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1988)(denial of reh’g); see Taylor, 97 F.3d at 1364 (appellate court is free to

affirm on any grounds for which there is sufficient record).

      The judgment of the United States District Court for the District of New

Mexico is AFFIRMED. Plaintiff’s request for attorney’s fees on appeal is

DENIED.



                                                    Entered for the Court



                                                    John C. Porfilio
                                                    Circuit Judge




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