                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           MAY 3 2000
                           FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 MARK WAYNE CRUZ,

               Plaintiff-Appellant,

 v.                                                      No. 99-4107
                                                    (D.C. No. 98-CV-27-J)
 JAMES WEBB, individually as SWAT                         (D. Utah)
 Officer, Utah State Prison; MIKE
 IPSEN, individually as SWAT Officer,
 Utah State Prison; CHET BATEMAN,
 SWAT Officer, Utah State Prison,

               Defendants-Appellees.


                            ORDER AND JUDGMENT


Before TACHA , ANDERSON , and LUCERO , Circuit Judges.



       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.

       Plaintiff filed this action under 42 U.S.C. § 1983, alleging that prison

officials’ use of excessive force against him violated his Eighth Amendment right

to be free from cruel and unusual punishment. The district court granted
defendants’ motion for summary judgment, and plaintiff appeals. We review the

grant of summary judgment      de novo , and we will affirm if there is no genuine

issue of material fact and defendants are entitled to judgment as a matter of law.

See Thomas v. Wichita Coca-Cola Bottling Co.        , 968 F.2d 1022, 1024 (10th Cir.

1992). “We view the evidence and draw any inference in a light most favorable

to [plaintiff], but [he] must identify sufficient evidence which would require

submission of the case to a jury.”     Id. Guided by these standards, we affirm.

       The only evidence submitted on the summary judgment record was the

attachments to defendants’ memorandum in support of their summary judgment

motion, which consisted of excerpts from depositions, affidavits, and prison

records. The plaintiff submitted no additional evidence in his response to the

motion. He did, however, make factual allegations citing to portions of

depositions not before the district court. Similarly, plaintiff’s brief on appeal

contains references to evidence that was not before the district court. Plaintiff

attempts to incorporate this evidence into the record by including it in his

appellate appendix. In deciding this appeal, we have considered only the record

evidence that was before the district court. Plaintiff may not rely on evidence that

is not in the record in arguing that there are genuine issues of material facts

precluding summary judgment.         See Allen v. Minnstar, Inc. , 8 F.3d 1470, 1475

(10th Cir. 1993) (portions of depositions not filed with or presented to district


                                             -2-
court could not be considered by district court on summary judgment or by

appeals court on review).

      Plaintiff claims that prison officers used excessive force on him in violation

of his Eighth Amendment rights. The incident giving rise to the claims occurred

when plaintiff was on “dry cell” status, which is invoked when a prisoner is

suspected of smuggling contraband into the prison in a package inserted in the

prisoner’s rectum. The prisoner is held in a cell without a toilet until he is ready

to defecate. When the prisoner indicates he is ready, he is allowed to defecate in

a bucket so that the officers can search for contraband. The prisoner is denied

access to a toilet to avoid the possibility that he might flush the contraband down

the toilet. After plaintiff finished defecating in the bucket, he approached the

toilet, put something in it, and flushed. At that point, the evidence shows there

was a flurry of activity resulting from plaintiff’s breach of discipline and the

officers’ attempts to restrain him and restore discipline.

      The record shows after plaintiff flushed the toilet, an officer ordered him to

get against the wall. Plaintiff hesitated and questioned the order, and the officer

sprayed Lysol in his direction. One of the officers took plaintiff to the floor,

placed his knee on plaintiff’s back, and restrained him there until plaintiff was

handcuffed. In attempting to get plaintiff up off the ground, the officers pushed

plaintiff into a wall. Plaintiff’s head struck the wall, and he was momentarily


                                          -3-
knocked unconscious. As a result of the scuffle, plaintiff complained of

breathing difficulty, blurred vision, and pain in his head and all over his body.

       A little over an hour later, plaintiff was examined by a nurse. Plaintiff

complained to the nurse of chest pain, headache, and dizziness. He stated to the

nurse that he hit his head, was knocked unconscious, and was experiencing chest

pain resulting from an officer’s knee in his back. The nurse reported no swelling

or discoloration on plaintiff’s head, back or chest. She stated in an affidavit that

plaintiff did not complain of any problems with his eyes and made no mention of

being sprayed with Lysol. Further, she did not observe any sign of trauma or

redness in plaintiff’s eyes, nor did she smell Lysol. She gave plaintiff oxygen

because he complained he was having trouble breathing.

       Where, as here, prison officials use force to restore discipline after a

disturbance, the proper inquiry to determine if an Eighth Amendment violation

occurred is “‘whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.’”   Hudson v.

McMillian , 503 U.S. 1, 6 (1992) (quoting     Whitley v. Albers , 475 U.S. 312, 320-21

(1986)). 1 This standard accounts for the fact that decisions to use force in such


1
       The dissent suggests that a jury could find that, although plaintiff provoked
the force used to restrain him, he did nothing to provoke the continued use of
force after he was handcuffed. In contrast to the situation presented in   Miller v.
Glanz , 948 F.2d 1562, 1564, 1567 (10th Cir. 1991), the allegations of excessive
                                                                         (continued...)

                                             -4-
situations are “necessarily made in haste, under pressure, and frequently without

the luxury of a second chance.”   Whitley 475 U.S. at 320. That reasoning is

applicable here, where the rapidly developing set of events required the officers

to make quick decisions to restore discipline. Confronted with plaintiff’s breach

of discipline, the prison officials were required to “balance the need to maintain

or restore discipline through force against the risk of injury to [plaintiff].”

Hudson 503 U.S. at 6.

      Here, there is no dispute that plaintiff flushed something down the toilet

while he was on dry cell status, an act in defiance of the procedure in place to

detect the existence of contraband and one that prompted the officers’ need to

maintain order and restore discipline. The record evidence shows that the officers

exerted the physical force necessary to restrain plaintiff and restore discipline.

Plaintiff’s testimony establishes that an officer sprayed Lysol “in [plaintiff’s]


1
 (...continued)
force in this case arise out of one incident comprised of a series of rapidly-
developing events. Miller involved allegations of two incidents of excessive
force, separated by time and distance. One arose from the prisoner’s resistance to
an officer’s attempt to handcuff him, and the other arose later, after the prisoner
had been locked in a holding cell. 948 F.2d at 1567. In    Miller , the district court
dismissed the prisoner’s claims under Fed. R. Civ. P. 12(b)(6). We reversed and
remanded, holding that the prisoner’s allegations of excessive force were
sufficient to state a claim. Id. at 1567. We stated that, on remand, in order for
the district court to determine the correct standard to apply in further
proceedings, the district court must make a determination as to whether the
prisoner posed an emergency-type threat when the second incident of alleged
excessive force occurred. Id.

                                          -5-
direction” after plaintiff hesitated in backing up against the wall. Appellee’s

Supp. App. at 44. The evidence shows this act was neither malicious nor sadistic.

See Hudson , 503 U.S. at 5, 7. The record also shows that, after plaintiff was

restrained, the officers used the physical force they considered necessary to

maintain discipline. Plaintiff has presented no evidence creating a question of

fact that the officers acted “maliciously and sadistically for the very purpose of

causing harm rather than in a good-faith effort to maintain or restore discipline.”   2



Mitchell v. Maynard , 80 F.1433, 1440 (10th Cir. 1996).




2
       Whether plaintiff failed to rise to his feet because he was hurt or simply
resisting the officers’ efforts to restore discipline is not a material question of
fact. The relevant inquiry is whether the officers applied force in a good faith
effort to restore discipline, and plaintiff has presented no evidence to suggest they
did not. There is no evidence that the officers believed that plaintiff was refusing
to stand because he was hurt and that they threw him into the wall knowing he
was unable to stand and intending to inflict further injury, something that could
certainly be characterized as malicious and sadistic. The dissent points to
plaintiff’s statement that the officers made some comments about knowing what
to do with him before they slung him into the wall when he did not comply with
their efforts to get him to his feet, as contrary to our conclusion that there is no
question of fact regarding the officers’ good faith. In fact, such a statement by
the officers is consistent with their perception that plaintiff was resisting their
efforts to restore discipline, thus requiring further use of force.

                                             -6-
      Plaintiff has not demonstrated a genuine issue of material fact as to his

excessive force claim. The record shows that defendants’ conduct under the

circumstances was neither malicious nor sadistic. Plaintiff’s evidence does not

show that the officers acted other than in a good-faith effort to restore discipline,

and, consequently, they are entitled judgment as a matter of law.

      AFFIRMED.


                                                     Entered for the Court



                                                     Deanell Reece Tacha
                                                     Circuit Judge




                                          -7-
99-4107, Cruz v. Webb

LUCERO , Circuit Judge, dissenting.

       After careful review of the evidence presented to the district court on

summary judgment, I conclude there is a genuine issue of material fact as to

whether the force used by the correctional officer defendants was wanton or was

implemented in good faith. I therefore respectfully dissent.

       The record reflects that after the officers handcuffed Cruz, they attempted

to make him stand. He testified that he would not stand because he thought he

was injured: “I wouldn’t give no [sic] strength to my legs” because “I didn’t want

to put any pressure, which in turn would put [pressure] on my back or my neck,

and I knew something was wrong with me.” (Appellees’ Supp. App. at 45.)

Although he told the officers not to move him because they “hurt [him] really

bad” and repeatedly stated he “need[ed] medical attention,” when he “didn’t stand

for them” and when the officers saw he “wasn’t going to put any pressure on [his]

legs, . . . they slung [him] into the wall.” (      Id. at 45-46.) Cruz characterized the

officers’ conduct as having “rammed” him into the wall. (           Id. at 47.) An inmate

who witnessed the event stated that an officer “slammed him into the wall” and

that his head “bounced off the wall.” (          Id. at 114.) As a result, he was knocked

unconscious. ( Id. at 49, 95, 98.)

       While the conclusion reached by the majority is certainly one possible

interpretation of the facts, another interpretation is that the officers “rammed”
Cruz’s head into the wall, while he was restrained, unable to stand on his feet,

and requesting medical care. Although plaintiff may have provoked the initial

force used to restrain him, a reasonable jury could conclude that, at the point the

officers “rammed” his head into the wall, plaintiff had ceased “to pose a

legitimate threat to the safety of the officers and other prisoners,”   Miller v. Glanz ,

948 F.2d 1562, 1567 (10th Cir. 1991), and did nothing to provoke this continued

use of force, see Green v. Branson , 108 F.3d 1296, 1301-02 (10th Cir. 1997).      1



The majority speculates that the officers acted in good faith because they “pushed

Cruz into a wall” in an “attempt[] to get [him] up off the ground,” (Order &

Judgement at 3), yet that is but one scenario supported by the evidence. The

majority’s factual conclusion stands in contrast to Cruz’s statement that before

they “slung” him into a wall, the officers “made some comments about they [sic]

know what to do with [him].” (Appellant’s App. at 45, 46.) I think it best for a

jury to resolve the factual dispute. Viewing the evidence in the light most

favorable to Cruz as the non-moving party, as we must in reviewing a grant of

summary judgment, a question remains as to whether the officers wantonly




1
   If a jury ultimately found that Cruz no longer posed a threat to the officers or
other prisoners at the time of the incident of which he complains, then the
required showing of the officers’ intent would change from malicious and sadistic
to deliberate indifference.  See Miller , 948 F.2d at 1566-67.

                                              -2-
inflicted an injury upon him.   See Green , 108 F.3d at 1301; see also Miller , 948

F.2d at 1567.




                                          -3-
