                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 21 1997
                              TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk
 LEROY SPANN,

               Plaintiff-Appellant,
                                                     Case No. 97-6157
 v.
                                                     (D.C. CIV-96-697-L)
 JANICE MELTON; MICHAEL J.                           (Western District of Oklahoma)
 BARBY; and BILL JOHNSON
 CORRECTIONAL CENTERS

               Defendants-Appellees.




                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.



      After examining the briefs and appellate record, this panel has unanimously

determined that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. 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               This order and judgment is not binding precedent, except under the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.
      Mr. Leroy Spann, proceeding in forma pauperis, brought this pro se action

under 42 U.S.C. § 1983 against the warden and an officer of the Bill Johnson

Correctional Center in Alva, Oklahoma. Mr. Spann asserts violations of the

Eighth and Fourteenth Amendments, caused by his alleged assault by defendant-

appellant Officer Michael Barby and by Mr. Spann’s subsequent transfer to a

medium-security prison. Mr. Spann seeks $2,000,000.00 in compensatory

damages for the alleged constitutional deprivations. The district court adopted

the magistrate judge’s report and recommendations that defendants’ motion for

summary judgment be granted. Mr. Spann appeals and we affirm.

      “We review the grant or denial of summary judgment de novo, applying the

same legal standard used by the district court pursuant to Fed. R. Civ. P. 56(c).”

Wolf v. Prudential Ins. Co. of Am., 50 F.3d 793, 796 (10th Cir. 1995). Summary

judgment is appropriate only if the uncontroverted material facts establish that the

moving party is entitled to judgment as a matter of law. See Russillo v.

Scarborough, 935 F.2d 1167, 1170 (10th Cir. 1991). We construe the record in

the light most favorable to the nonmoving party. See Wolf, 50 F.3d at 796. In

addition, because Mr. Spann is proceeding pro se, we must construe his pleadings

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




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                                 I. DISCUSSION

      This suit arose from events transpiring on January 16, 1996, when Mr.

Spann appropriated a roll of toilet tissue from the desk of Officer Barby. Mr.

Spann alleges Officer Barby subsequently physically assaulted him, “without

justification,” Rec. doc. 1, at 3 (Compl.), in violation of the Eighth Amendment

protection from cruel and unusual punishment.



      A. Physical Assault

      A prison guard’s use of force amounts to cruel and unusual punishment

“only if it involves ‘the unnecessary and wanton infliction of pain.’” Sampley v.

Ruettgers, 704 F.2d 491, 495 (10th Cir. 1983) (quoting Gregg v. Georgia, 428

U.S. 153, 173 (1976)). A de minimis use of force is not wanton and unnecessary

unless it is “repugnant to the conscience of mankind.” Hudson v. McMillian, 503

U.S. 1, 9-10 (1992).

      The magistrate judge noted that Mr. Spann “provided evidence of only

minimal physical contact between himself and [Officer] Barby,” Rec. doc.13, at

9, and on appeal Mr. Spann concedes he “was not physically harmed in [the]

assault.” Aplt’s Br. at 2. Therefore, we agree with the district court that the

physical assault claim should fail.

      However, in lieu of pressing his physical assault cause of action, Mr. Spann


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alleges a conspiracy to “subject him to mental anguish.” See id. But he presents

us with no facts in support of this claim, and he failed to raise it below.

Therefore, we find it without merit and decline to discuss it further.

      We also agree with the magistrate judge that, were there merit to Mr.

Spann’s claims, Warden Melton would be entitled to qualified immunity, as there

is no evidence Warden Melton personally participated in or knowingly acquiesced

to the alleged use of force by Officer Barby. See Rec. doc. 13, at 10 (citing

Monell v. Department of Soc. Servs., 436 U.S. 658, 691 (1978); Jenkins v. Wood,

81 F.3d 988, 994-95 (10th Cir. 1996)).

      B. Transfer to Medium-Security Prison

      Mr. Spann also alleges that his transfer to a medium-security facility

violated his constitutional rights. We have held that Oklahoma’s prison system

creates no protected liberty or property interest which requires due process to

transfer an inmate. Twyman v. Crisp, 584 F.2d 352, 355-57 (10th Cir. 1978).

“[T]he due process clause does not protect a prisoner from being transferred from

one institution to another within a state prison system.” Id. at 355 (citing

Meachum v. Fano, 427 U.S. 215, 228 (1976)).

      Mr. Spann also intimates that his transfer was a violation of the Eighth

Amendment, because the placement in a medium-level facility endangered his

life. As the magistrate judge noted, Mr. Spann “has failed to present facts


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sufficient to demonstrate a material factual dispute as to either the existence of a

substantial risk or of serious harm” that might support a finding of deliberate

indifference on the part of the defendants. Rec. doc. 13, at 12 (citing Riddle v.

Mondragon, 83 F.3d 1197, 1205 (10th Cir. 1996) (holding that plaintiff alleging

Eighth Amendment violation from the failure to protect his safety “must furnish

more than a conclusory claim of being afraid. . . .”)). The district court correctly

granted summary judgment to defendants on this claim.



                                 II. CONCLUSION

      Accordingly, we AFFIRM the decision of the district court. The mandate

shall issue forthwith.

                                              Entered for the Court,

                                              Robert H. Henry
                                              Circuit Judge




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