* The Hon. Thomas W. Phillips, United States District Judge for the Eastern District of Tennessee, sitting by designation. NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0658n.06

Filed: August 4, 2005 04-1681 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
GEORGE BRIKHO, JR., Plaintiff-Appellant,

v. JAMES HORAN, Macomb County Deputy Sheriff, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

Before: MERRITT and DAUGHTREY, Circuit Judges, and PHILLIPS, *District Judge. PER CURIAM. The plaintiff, George Brikho, filed this § 1983 action claiming that, while incarcerated in the work release facility in the Macomb County (Michigan) Jail, he was seriously injured when deputy sheriff James Ho ran woke him during roll call by kicking him in the back. Brikho sued t he County, Sheriff Mark Hacke l, and Horan, contending that Horan used excessive force in violation of t he Eighth Amendment. The district court granted summary judgment to the County and Sheriff Hackel, and the case against Horan went to trial. At the conclusion of t he plaintiff’s case, the districtcourt granted Horan’s motion for judgment as a matter of law, finding that t here was “not one shred of evidence in the04-1681 Brikho v. Horan

- 2 - record” that the defendant used excessive forc e “maliciously and sadistically for the very purpose of causing [the plaintiff] harm.” We find no reversible error and affirm.

PROCEDURAL AND FACTUAL HISTORY
Plaintiff Brikho was a 27-year-old work rel ease inmate at the county jail, asleep in his bunk bed at 9:30 one morning in May 2002, w hen Horan, a correctional officer at the jail, began taking a roll call of the prisoners. Three other inmates present at the time testified that because Horan c ould not wake Brikho verbally , he kicked Brikho in the back. The prisoners claimed that Horan would occasi onally wake prisoners wit h a kick to the back or backside when they did not respond. Horan could not recall specifically what had happened on the day in question with r egard to the roll call in Br ikho’s bunk area. He did testify that he commonly kicked or tapped t he metal bunk frames with his foot when he needed to wake an inmate who did not respond verbally during a roll call. Brikho testified that he was sleeping in hi s bunk, facing the wall of the cell, when he felt something impact him in the back. He said that he was st artled, that he abruptly twisted around to see what it was, and that as he did so, he heard something in his back “pop.” Later that day, he said, he began to feel pain throughout his back and legs. He claimed he was denied permission to visit the hospital that night after spending the day at work, but records showed that he also refused medical treatment at the jail. When he did go to a hospital ER the next day, he reported to m edical personnel both that he had been “kicked” and that he had been “nudged.” He di d not receive continuing medical care for some three04-1681 Brikho v. Horan

1 Defense counsel apparently thought that he had prev iously filed a motion for summary judgment in Horan’s favor, but the district court pointed out that there was none in the record. - 3 - weeks, supposedly because he had no medical insu rance. Finally, at the behest of his lawyer, Brikho saw Dr. Jeffrey Parker. Parkerlater testified that Brikho reported that he had been repeatedly kicked in his side and back and t hat, as a result, Brikho suffered from lumbar radiculopathy, causing pain, limitat ion of movement, and erectile dysfunction. However, Brikho had previously injured hi s back in a 1997 automobile accident, suffering many of the same symptoms t hat he reported to Dr. Parker in 2002, and at some point in the proceedings, Brikho conceded that the event s at the jail had merely exacerbated his previous back injury, which had not been symptomatic for some three years. In granting the defendant’s “motion for a dire cted verdict,” the district court said: I’m sorry, Mr. Brikho, but you do not have a case under the Eighth Amendment standard, and it should hav e been dismissed before it ever came to trial. 1 The requirement is that y ou show that the defendant used excessive force against the plaintiff ma liciously and sadistically for the very purpose of causing the plaintiff harm. There is not one sh red of evidence in the record, not one shred, that that was done in this case. At most, it was a kick, and there’s c onflicting testimony even on that, whether it was just a nudge with t he foot, a pushing off with the foot, a shoving off. There’s nothing to suggest, not anyth ing, that this defendant acted maliciously or sadistically in this instance . . . . You have failed to meet the first element of this claim, and I would be remiss in sending this to the jury. I don’t believe that any rational finder of fact could find a claim under the Eighth Amendment.04-1681 Brikho v. Horan

- 4 - The plaintiff appeals this ruling, contending that his case should have been submitted to the jury for resolution of disputed factual issues.

DISCUSSION
On appeal, Brikho claims that the district court erred bygranting Horan’s motion for judgment as a matter of law. We review such a ruling de novo, see Karam v. Sagemark Consulting, Inc. , 383 F.2d 421, 427-28 (6th Cir. 2004), and affirm the district court’s decision only if, viewing the evidence in the light most favorable to the non-moving party, a complete absence of proof existed on a mate rial issue in the claim or there was no disputed issue of fact on which r easonable minds could have differed. See id . at 428 (quoting LaPerriere v. Int’l Union UAW , 348 F.3d 127, 132 (6th Cir. 2003)). In this case, we agree with the district court’s determinati on that the there was a complete absence of proof on a material issue in the claim, i.e., the question of intent to harm, and that this failure of proof was dispositive. In the first place, prison security and di scipline may often require that prisoners be subjected to physical contact equi valent to common law assault. See Whitley v. Albers , 475 U.S. 312, 319 (1986) (quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977)); Pelfrey v. Chambers , 43 F.3d 1034, 1037 (6th Cir. 1995). As t he district court noted, “Not every such touch is malevolent.” At the same time, a state actor violates a prisoner’s Eighth Amendment rights by subjecting him to the unnecessary and wanton infliction of pain. See Whitley , 475 U.S. at 319. To determine the nat ure of the force, a court should ask04-1681 Brikho v. Horan

- 5 - whether the measure taken by the state actor was applied in a good faith effort to maintain or restore discipline or maliciously and sadist ically for the very purpose of causing harm. See Hudson v. McMillian , 503 U.S. 1, 6 (1992). It was t he lack of malicious or sadistic purpose in this case that caused the districtcourt to hold that the defendant was entitled to judgment as a matter of law. Our reading of the record convinces that the court was correct. The most that can be said of the pl aintiff’s claims concerning Horan’s performance of his responsibilities is that it involved negli gence but not intent to injure, with or without malice. Although it would not have been error fo r the court to have sent the case to the jury, we agree that a continuati on of the trial would have been a futility, as a matter of law.

CONCLUSION
For the reasons set out above, we AFFIRM the judgment of the district court.