                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                 January 31, 2011
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ERIC MARSHALL,

                Plaintiff-Appellant,

    v.                                                   No. 10-1104
                                             (D.C. No. 1:08-CV-00299-PAB-BNB)
    KEVIN MILYARD, Warden;                                (D. Colo.)
    STEVEN BADE, Lieutenant; JAMES
    FRYER, Correctional Officer;
    ANTHONY A. DECESARO,
    Grievance Officer; FLOYD A. WADE,
    West CC Manager; M. NEGLEY, Shift
    Commander,

                Defendants-Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, PORFILIO and BRORBY, Senior Circuit
Judges.



         Eric Marshall, a Colorado state-prison inmate proceeding pro se, appeals

the district court’s dismissal of his claims under 42 U.S.C. § 1983 asserting


*
       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not binding precedent, except under the doctrines of law of the case, res judicata,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. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
constitutional violations. Exercising jurisdiction under 28 U.S.C. § 1291, we

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

                                    Background

      Although Mr. Marshall asserted four claims in his amended complaint, on

appeal he addresses only two of them: his excessive-force and retaliation claims

against Lieutenant Steven Bade. In support of these claims he alleged the

following:

      Lieutenant Bade approached him at the shower on June 11, 2007, and told

him to lock down in his cell. When he asked why he needed to lock down,

Lieutenant Bade replied that he was not sure. Mr. Marshall retorted that “per the

Co[d]e of Penal Disciplinary Book your order must give notice and it must be

reasonable in nature.” R. at 45. Lieutenant Bade replied, “I don’t care[. G]o

lock down.” Id. As Mr. Marshall began walking toward his cell to lock down,

Lieutenant Bade grabbed his upper right arm. He turned and told Lieutenant

Bade, “[D]o not put your hands on me.” Id. Lieutenant Bade then ordered him to

“turn around and cuff up.” Id. Mr. Marshall did not resist being handcuffed but

remarked, “[A]ll you had to do was ask me first before you put your hands on me

for no reason. I was walking to the cell to lock down.” Id. Lieutenant Bade and

another officer then escorted Mr. Marshall about 1,200 feet to see Captain

M. Negley, the shift commander, with Lieutenant Bade holding Mr. Marshall’s

right arm and the other officer holding his left arm. As they were walking,

                                         -2-
Lieutenant Bade put his fingernails deep into Mr. Marshall’s right arm. 1

Lieutenant Bade injured him, as documented by a prison medical form attached to

his amended complaint. That form, dated June 11, 2007, indicated that he had a

three-by-four-centimeter bruise on the inside of his upper right arm and a

four-by-five-centimeter red area on the outside of that arm.

      Mr. Marshall asserted to Captain Negley that Lieutenant Bade had violated

prison policy by ordering him to lock down, but Captain Negley placed him in

segregation for 14 days, at Lieutenant Bade’s request. He received a notice of

Code of Penal Discipline (COPD) charges, accusing him of advocating or creating

a facility disruption and disobeying a lawful order on June 11. The charges were

dismissed after a hearing, however, because a prison lieutenant testified that no

instruction had been given for Mr. Marshall to be locked down. Lieutenant Bade

then retaliated by bringing a false charge against him for unauthorized absence

and ensuring his conviction on that charge by procuring false statements from

lower-ranking staff members. As a result of this conviction, Mr. Marshall lost

eight days of good-time credit and he was ineligible for earned-time credit for a

period of time.

      Mr. Marshall filed this action in February 2008. Defendants moved under

Fed. R. Civ. P. 12(b)(6) to dismiss his amended complaint for failure to state a


1
      Mr. Marshall made conflicting statements in his amended complaint
concerning whether this alleged force began before or after he was in handcuffs.

                                         -3-
claim. The district court referred the motion to a magistrate judge, who

recommended dismissal of all claims. After reviewing Mr. Marshall’s objections,

the district court accepted the magistrate judge’s recommendations and entered

judgment in favor of defendants. Mr. Marshall filed a timely appeal. The district

court denied his application for leave to proceed in forma pauperis on appeal,

concluding that his appeal was not taken in good faith.

                                Standard of Review

      We review de novo a district court’s dismissal of a claim under

Fed. R. Civ. P. 12(b)(6). See Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir.

2010). The court’s function is “to assess whether the plaintiff’s amended

complaint alone is legally sufficient to state a claim for which relief may be

granted.” Id. (internal quotation marks omitted). In doing so, we accept all

well-pleaded allegations as true and construe them in the light most favorable to

Mr. Marshall. See id. And because Mr. Marshall is proceeding pro se, we

liberally construe both his amended complaint and his arguments on appeal.

See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (recognizing pro se

litigant’s pleadings are “held to a less stringent standard”); Cummings v. Evans,

161 F.3d 610, 613 (10th Cir. 1998) (liberally construing pro se appellate brief).

Our broad reading of his complaint, however, does not relieve Mr. Marshall of

“the burden of alleging sufficient facts on which a recognized legal claim could

be based.” Hall, 935 F.2d at 1110. To avoid dismissal, his amended complaint

                                         -4-
must contain enough facts to state a claim for relief that is “plausible on its face.”

Peterson, 594 F.3d at 727 (internal quotation marks omitted).

                               Excessive-Force Claim

      Mr. Marshall argues that his amended complaint sufficiently alleged an

excessive-force claim against Lieutenant Bade. “Ordinarily, an excessive force

claim involves two prongs: (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.” Smith v. Cochran,

339 F.3d 1205, 1212 (10th Cir. 2003) (internal quotation marks and brackets

omitted). “The subjective element of an excessive force claim turns on whether

force was applied in a good faith effort to maintain or restore discipline or

maliciously and sadistically for the very purpose of causing harm.” Id. (internal

quotation marks omitted). Mr. Marshall contends that his amended complaint

satisfied the subjective component by showing that Lieutenant Bade used force

against him on June 11, 2007, when he had no cause to do so. He points to his

allegation that there was no basis for Lieutenant Bade’s order to lock down in his

cell. He asserted that he was nonetheless complying with that order and moving

toward his cell when Lieutenant Bade grabbed his arm. He further alleged that he

did not resist being handcuffed, yet Lieutenant Bade dug fingernails into his arm

with enough force to injure him. Mr. Marshall argues that these allegations

                                          -5-
support a conclusion that Lieutenant Bade acted maliciously and sadistically to

cause him harm, rather than to maintain or restore discipline.

      These allegations may be sufficient to satisfy the subjective prong of an

excessive force claim. But we need not decide that issue because Mr. Marshall

failed to allege sufficient facts to show wrongdoing that was “objectively harmful

enough to establish a constitutional violation.” Smith, 339 F.3d at 1212. An

action by a prison guard may be malevolent yet not amount to cruel and unusual

punishment. See Hudson v. McMillian, 503 U.S. 1, 9 (1992). As the Court made

clear in Hudson, “Not every push or shove, even if it may later seem unnecessary

in the peace of a judge’s chambers, violates a prisoner’s constitutional rights.”

Id. (internal quotation marks omitted). Thus, even if a use of force is deemed

unnecessary after the fact, if it was both de minimus and “not of a sort repugnant

to the conscience of mankind,” it will not sustain an excessive-force claim. Id. at

10 (internal quotation marks omitted).

      We accept as true, as we must, the allegation that Lieutenant Bade grabbed

Mr. Marshall’s arm and dug his fingernails into it, resulting in an injury. We

addressed a similar extent of force in Norton v. City of Marietta, 432 F.3d 1145,

1156 (10th Cir. 2005), in which prison guards were alleged to have injured a

prisoner by grabbing him around his neck and twisting it. We held that the

officers’ actions were not “objectively harmful enough to establish a

constitutional violation.” Id. We reach the same conclusion here. The force

                                         -6-
allegedly used against Mr. Marshall was both de minimus and not of a nature that

is repugnant to mankind.

      Our conclusion is bolstered by our sister circuits’ decisions considering

comparable, or even greater, uses of force. In DeWalt v. Carter, 224 F.3d 607,

610-11 (7th Cir. 2000), a prisoner alleged that an officer shoved him into a

doorframe after the prisoner called him unprofessional. The prisoner suffered

bruising on his back. Id. at 611. The court held that the force used was

de minimus and insufficient to support an Eighth Amendment claim. Id. at 620.

Another court held that bumping, grabbing, elbowing, and pushing a prisoner was

“not sufficiently serious or harmful to reach constitutional dimensions.” Boddie

v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997); see also Lunsford v. Bennett,

17 F.3d 1574, 1578, 1582 (7th Cir. 1994) (hitting prisoner in the head with a

bucket, causing daily headaches, was minor use of force insufficient to establish

constitutional violation); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir.

1985) (pushing cubicle-cell wall onto prisoner’s leg, causing bruises, was

insufficient use of force to state a constitutional violation); Olson v. Coleman,

804 F. Supp. 148, 149-50 (D. Kan. 1992) (single blow to prisoner’s head while

escorting him into prison, causing contusion, was de minimus use of force not

repugnant to conscience of mankind).

      Moreover, although Mr. Marshall was not required to allege a significant

injury in order to state an Eighth Amendment excessive-force claim, the extent of

                                         -7-
his injury “may . . . provide some indication of the amount of force applied.”

Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010); see also Hudson, 503 U.S. at 7

(absence of serious injury is relevant to Eighth Amendment inquiry, “but does not

end it”). Mr. Marshall argues on appeal that Lieutenant Bade used enough force

to make his arm bleed. But that is not what his amended complaint alleged. He

asserted that the prison medical form attached as an exhibit to his amended

complaint documented his injury. We consider this attachment as a part of his

complaint for purposes of a Rule 12(b)(6) motion. See Hall, 935 F.2d at 1112.

The medical form shows only areas of redness and bruising. Thus, the facts he

averred regarding the extent of his injuries lend further support to our conclusion

that Lieutenant Bade used only de minimus force. See DeWalt, 224 F.3d at 620

(relying, in part, on prisoner’s minor injuries in concluding force was

de minimus); Lunsford, 17 F.3d at 1582 (same); Black Spotted Horse, 767 F.2d

at 517 (same).

      The district court did not err in dismissing Mr. Marshall’s excessive-force

claim under Rule 12(b)(6) for failure to state a claim. In reaching this conclusion,

we do not condone unnecessary uses of force by prison guards. But

Mr. Marshall’s allegations of de minimus force simply fall short of what is

required to establish a constitutional violation. The district court’s dismissal of

Mr. Marshall’s excessive-force claim is affirmed.




                                          -8-
                                  Retaliation Claim

      Mr. Marshall alleged that Lieutenant Bade retaliated against him for the

dismissal of the COPD charges related to the June 11, 2007, incident. He claimed

that Lieutenant Bade initiated an unfounded charge of unauthorized absence and

then ensured his conviction by procuring false statements from lower-ranking

officers. As a result of his COPD conviction, Mr. Marshall lost eight days of

good-time credit and he was temporarily ineligible to receive earned-time credit.

      The district court dismissed Mr. Marshall’s retaliation claim as barred by

Heck v. Humphrey, 512 U.S. 477 (1994), because he had failed to allege that his

COPD conviction and the resulting deprivation of good-time credits had already

been invalidated. In Heck the Court held that “habeas corpus is the exclusive

remedy for a state prisoner who challenges the fact or duration of his confinement

and seeks immediate or speedier release, even though such a claim may come

within the literal terms of § 1983.” Id. at 481.

      Thus, when a state prisoner seeks damages in a § 1983 suit, the
      district court must consider whether a judgment in favor of the
      plaintiff would necessarily imply the invalidity of his conviction or
      sentence; if it would, the complaint must be dismissed unless the
      plaintiff can demonstrate that the conviction or sentence has already
      been invalidated.

Id. at 487.

      The Heck rule also applies to a claim challenging prison disciplinary

proceedings when the alleged unconstitutional conduct could support a core


                                          -9-
habeas claim. See Edwards v. Balisok, 520 U.S. 641, 643, 648 (1997) (prisoner’s

§ 1983 claim barred by Heck because allegations of deceit and bias necessarily

implied invalidity of disciplinary proceedings used to deprive him of good-time

credits toward his release). On the other hand, a § 1983 claim remains available

if “success in the action would not necessarily spell immediate or speedier release

for the prisoner,” Wilkinson v. Dotson, 544 U.S. 74, 81 (2005), because a core

habeas remedy is not available in that circumstance, see id. at 83-84. In

Wilkinson the Court held that the prisoners’ claims were cognizable under § 1983

because judgments in their favor would, at most, entitle them to speedier or new

consideration for discretionary parole. See id. at 82. In short:

      [A] state prisoner’s § 1983 action is barred (absent prior
      invalidation)–no matter the relief sought (damages or equitable
      relief), no matter the target of the prisoner’s suit (state conduct
      leading to conviction or internal prison proceedings)–if success in
      that action would necessarily demonstrate the invalidity of
      confinement or its duration.

Id. at 81-82.

      The district court concluded that Mr. Marshall’s § 1983 retaliation claim

was barred by Heck because a judgment in his favor would necessarily imply the

invalidity of his COPD conviction and his resulting loss of good-time credits.

But under Colorado law, accumulation of good-time credits affects only a

prisoner’s parole-eligibility date. See Jones v. Martinez, 799 P.2d 385, 388

(Colo. 1990) (good-time credits “do not constitute service of sentence” and only


                                         -10-
serve to “make the inmate eligible for release on parole”). In most cases, parole

in Colorado remains discretionary even after a prisoner accrues sufficient credits

to become eligible for it. See Thiret v. Kautzky, 792 P.2d 801, 805 (Colo. 1990). 2

Consequently, invalidation of Mr. Marshall’s COPD conviction and restoration of

his good-time credits would afford him only speedier consideration for

discretionary parole, rather than ensure speedier release. Thus, the district court

adopted an incorrect ground for barring Mr. Marshall’s § 1983 retaliation claim

under Heck. See Wilkinson, 544 U.S. at 82.

      The Colorado Attorney General urges us to affirm the district court’s

dismissal of Mr. Marshall’s retaliation claim under Heck on another basis: the

implied challenge to his temporary loss of eligibility to receive earned-time

credits. The Attorney General asserts that earned-time credits, unlike good-time

credits, reduce the length of a prisoner’s sentence. 3 Although Mr. Marshall did


2
       Some Colorado prisoners are entitled to parole upon reaching their parole
date, see Thiret, 792 P.2d at 805; but Mr. Marshall did not allege facts in his
amended complaint indicating that he falls in this category.
3
       For this proposition the Attorney General cites C.R.S. § 17-22.5-402(2),
which provides: “[T]he full term for which an inmate is sentenced shall be
reduced by any earned release time and earned time granted pursuant to section
17-22.5-405 . . . .” Section 17-22.5-405(3) gives the department of corrections
authority to “grant, withhold, withdraw, or restore . . . an earned time deduction
from the sentence imposed.” We note, however, that the Colorado Supreme Court
cited both these statutory sections in its decision rejecting a prisoner’s contention
that he had satisfied his sentence and was entitled to an unconditional release
from prison based on his time served, plus his accumulated good-time and earned-
time credits. See Meyers v. Price, 842 P.2d 229, 231-32 (Colo. 1992).

                                        -11-
not allege in his amended complaint that he had lost any earned-time credits as a

result of his COPD conviction, the Attorney General states that under Corrections

Department policy his COPD conviction made him temporarily ineligible to

receive additional earned-time credits. Thus, according to the Attorney General,

Mr. Marshall’s retaliation claim is barred by Heck because a judgment in his

favor would necessarily imply the invalidity of his COPD conviction and of the

resulting loss of his earned-time-credit eligibility.

      The Attorney General has not shown, however, that a claim of improper

deprivation of earned-time-credit eligibility is a core habeas claim (thus triggering

application of Heck)—that is, the Attorney General has not explained why

restoration of that eligibility would necessarily entitle Mr. Marshall to immediate

or speedier release from prison. See Wilkinson, 544 U.S. at 82. In this regard, we

are concerned that another filing by the Attorney General in a different appeal

appears to contend that a claim for loss of earned-time-credit eligibility cannot be

brought in a habeas proceeding. 4 In Frazier v. Jackson, 385 F. App’x 808, 809

(10th Cir. 2010), cert. denied, 79 U.S.L.W. 3399 (U.S. Jan. 10, 2011) (No.

10-6985), a prisoner sought a certificate of appealability from this court to appeal

the district court’s denial of his habeas application. The prisoner in Frazier

challenged on due-process grounds two COPD convictions that made him


4
     That brief and the Attorney General’s brief on this appeal were filed by the
same Assistant Attorney General within a month of each other.

                                          -12-
temporarily ineligible to receive earned-time credits. See id. at 810. The

Attorney General’s brief in Frazier described the extent of Colorado prison

authorities’ discretion to award earned-time credits to, or withhold them from,

prisoners who are eligible to receive them—even indicating that prison authorities

have discretion to withdraw previously awarded earned-time credits. See

Response Brief in Accordance with the Court’s Order Dated May 17, 2010 at 5-6,

Frazier v. Jackson, No. 09-1429 (10th Cir. June 11, 2010). The Attorney General

asserted that Colorado prisoners therefore have no entitlement to earned-time

credits. See id.

      Hence, we are reluctant to embrace the Attorney General’s alternative Heck

argument without further clarification of his position concerning prisoners’ rights

with respect to earned-time credits. That clarification is best obtained through

proceedings in district court. We therefore reverse the district court’s dismissal

of Mr. Marshall’s retaliation claim and remand to the district court for further

consideration of that claim.

                                    Conclusion

      The judgment of the district court is AFFIRMED in part and REVERSED

in part, and REMANDED to the district court for further consideration consistent




                                        -13-
with this order and judgment. Mr. Marshall’s motion for appointment of counsel

is DENIED. His motion to proceed on appeal without prepayment of the filing

fee is GRANTED.


                                                 Entered for the Court



                                                 Harris L Hartz
                                                 Circuit Judge




                                      -14-
