* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 9 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAIME SASA, Plaintiff-Appellant,

v. ARISTEDES ZAVARAS, and Major John Doe; LT. ROMANSKI; SGT. McQUEEN, OFFICER WEATHERILL, Commanding Officer; OFFICER RODRIGUEZ, Commanding Officer; OFFICER SCHUYLER, Commanding Officer; GREGORY VENDETTI, Commanding Officer, Defendants-Appellees. No. 98-1210 (D.C. No. 95-K-854) (D. Colo.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BRORBY , and BRISCOE , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of-2-

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. There fore, the case is ordered submitted without oral argument. Jaime Sasa, a Mexican national who is currently inc arcerated in a federal facility, appearing pro se, appeals the district co urt’s dismissal of his 42 U.S.C. § 1983 excessive force action against prison official s. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm in part, re verse in part, and remand. Sasa alleges he was beaten without provocation by c orrectional officer Gregory Vendetti on September 20, 1994, while Sasa was serving a Colorado state sentence. Several other correctional officers alle gedly observed the beating, but did nothing. Sasa filed this § 1983 action in Apri l 1995, alleging excessive force. He also sued the observing officials, claiming theyviolated his rights by failing to take any action to stop Vendetti. In addition, he sued Aristedes Zavaras, who was allegedly responsible for training and supervising the officials. Defendants responded by filing a motion to dismiss and/or for summary judgment. They submitted affidavits asserting at the time of the incident Sasa had just been transferred to the facility, was angry an d uncooperative, and was trying to verbally provoke Vendetti. The affidavits asserted that, as Vendetti was escorting Sasa into the control center, Sasa shovedVendetti and Vendetti grabbed Sasa. Two of the other defendants allegedly strip- searched Sasa and placed him in restraints while Vendetti prepared an incident r eport.-3-

In his response, Sasa continued to assert he had be en “physically assaulted” by Vendetti “while five other Correctional Officers . . . ‘stood around, watched and refused to [intervene] or stop such horrendous abuse.’” Record I, Doc. 20 at 1. Sasa attached a copy of an administrative griev ance form he had filed, in which he described his version of the incident: On September 20, 1994, I was assaulted by officer V endetti at approximately 11am to 1pm, in between those hours. This incident took place in the Captains Office. This officer di d assault me in a fashion that he used his fists, choked me, beat me about the head, ran my head into a wall, and all this was done in the p resence of five other staff members who stood there watching while this officer repeatedly beat me about my body. This officer sai d that I had pushed him into an open door which I do not have any [knowledge] about and I was beat for [something] that I did nothave any involvement in. Id. , Doc. 20, Ex. 1. The magistrate judge recommended that Sasa’s claim against Zavaras be dismissed as there were no allegations and no evide nce that Zavaras personally participated in the alleged incident. With regard to Sasa’s claims against the remaining defendants, the magistrate concluded ther e remained “disputed issues of material fact as to the type of force used on [Sasa].” Id. , Doc. 21 at 4. In support of this conclusion, the magistrate specific ally cited the description of the beating set forth in Sasa’s grievance form. Defend ants objected to the magistrate’s recommendation, arguing the grievance form was unsworn and was insufficient to rebut the affidavits submitted by d efendants. They further argued-4-

Sasa had neither alleged nor proven any injury resu lting from the alleged incident. The district court issued a one-page order, stating :

This Court having reviewed the Recommendation of th e United States Magistrate Judge and the Objection filed the reto, it is hereby ORDERED that the Objection to the Magistrate Judge’ s Recommendation is SUSTAINED. The Motion to dismiss is granted for the reasons stated in the motion. Id. , Doc. 24. Sasa filed a motion for relief from jud gment, which was denied. On appeal, Sasa contends the district court ignoredevidence, including his sworn complaint, which was sufficient to rebut defe ndants’ evidence and survive summary judgment. Sasa further contends the court failed to take into account his pro se status, and the court violated Rule 52(a) byfailing to set forth specific reasons for granting defendants’ motion. Rule 52(a) was not violated in this case. By its e xpress language, 52(a) applies only where an action has been “tried upon the facts without a jury or with an advisory jury.” Here, 52(a) is inapplicable bec ause there was no trial. Instead, the court ruled on defendants’ dispositive motion. Since it is unclear from the record whether the cou rt granted defendants’ motion to dismiss or their motion for summary judgm ent, we will review Sasa’s appeal under both dismissal and summary judgment st andards.

Motion to dismiss-5-

We review the grant of a motion to dismiss for fail ure to state a claim de
novo. See Seamons v. Snow , 84 F.3d 1226, 1231 (10th Cir. 1996). In reviewin g a decision on a motion to dismiss, we accept the fa ctual allegations in the complaint as true and we resolve all reasonable inf erences in plaintiff’s favor.
See id. at 1231-32. Dismissal under Rule 12(b)(6) is a “h arsh remedy which must be cautiously studied, not only to effectuate the s pirit of the liberal rules of pleading but also to protect the interests of justice.” Cayman Exploration Corp. v. United Gas Pipe Line Co. , 873 F.2d 1357, 1359 (10th Cir. 1989) (internal quotation marks and citation omitted). Dismissal f or failure to state a claim is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim to entitle him to relief. Conley v. Gibson , 355 U.S. 41, 45-46 (1957); see Seamons , 84 F.3d at 1231. Inmates are protected from the use of excessive for ce by the cruel and unusual punishment clause of the Eighth Amendment. Whitley v. Albers , 475 U.S. 312 (1986). “It is obduracy and wantonness, n ot inadvertence or error in good faith, that characterize the conduct prohibite d by the Cruel and Unusual Punishments Clause.” Id. at 319. For a beating by prison officials to rise to the level of an Eighth Amendment violation, it must be shown that the officials “acted maliciously and sadistically for the very pu rpose of causing harm rather than in a good-faith effort to maintain or restore discipline.” Mitchell v.-6-

Maynard , 80 F.3d 1433, 1440 (10th Cir. 1996). “In making this determination, it is necessary . . . to balance the need for applicat ion of force with the amount of force used.” Id. “It is not necessary for [a] plaintiff to allege a significant physical injury to state a cause of action.” Id. Considering Sasa’s complaint in light of these stan dards, we conclude he properly stated a cause of action against all defen dants except Zavaras. Sasa alleged Vendetti physically attacked and beat him f or no reason. Assuming these allegations are true, Vendetti clearly would have v iolated Sasa’s Eighth Amendment rights. Sasa alleged the remaining defen dants (except Zavaras) observed the beating but failed to take any action to stop Vendetti. Again, such allegations, if true, would sufficiently demonstrat e an Eighth Amendment violation. See , e.g. , Burgess v. Moore , 39 F.3d 216, 218 (8th Cir. 1994) (prison official may be liable for failure to protect an in mate from use of excessive force if official is deliberately indifferent to a substa ntial risk of serious harm to inmate); Hovater v. Robinson , 1 F.3d 1063, 1068 (10th Cir. 1993) (same). Sasa alleged Zavaras was responsible for training and supervising the other defendants. Such allegations are insufficient to s upport an Eighth Amendment violation. See , e.g. , Harris v. Roderick , 126 F.3d 1189, 1204 (9th Cir. 1997) (supervisory employee liable for constitutional vio lations of subordinates only if he participated in or directed the violations, or k new of violations and failed to-7-

act to prevent them), cert. denied 118 S. Ct. 1051 (1998); Grimsley v. MacKay , 93 F.3d 676, 679 (10th Cir. 1996) (“Supervisor status alone is insufficient to support liability” under § 1983). Thus, Sasa’s claim again st Zavaras was properly dismissed. Motion for summary judgment We review a district court’s grant of summary judgment de novo. See Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th Cir. 1995). Summary judgme nt is appropriate if the record shows there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Id. , Fed. R. Civ. P. 56(c). The moving party is entitled to summary judgment when “the record taken as a whole could not lead a rational trier of fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986). In applying this standard, we examine the record and reasonable inferences drawn therefrom in the light most favorable to the non-moving party.
See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996). As stated, defendants submitted affidavits indicati ng Sasa provoked Vendetti, verbally and physically, and that Vendett i responded with only an amount of force sufficient to place Sasa in the con trol center. The affiants denied that Sasa was beaten by Vendetti. Sasa responded b y continuing to allege he was beaten without provocation by Vendetti, and he atta ched a copy of his grievance-8-

form in which he detailed the beating and denied having provoked Vendetti. Sasa also asked the district court to “please refer to atape that was used during the Hearing at Fremont Correctional Facility (FCC) at w hich time [he] Swore to the Hearing Officers about being assaulted by Officer V endetti.” Record I, Doc. 20 at 3. Although Sasa’s response did not expressly r efer to the statements in his verified complaint, Sasa was also entitled to have the district court consider those.
See Green v. Branson , 108 F.3d 1296, 1301 n.1 (10th Cir. 1997) (if comp laint has been sworn to under penalty of perjury, court treat s it as an affidavit). In particular, the complaint alleged Sasa “was physica lly beaten by . . . Vendetti for no reason at all,” and that other “officers stood around and watched the beating take place.” Record I, Doc. 3 at 2. Considering this evidence together, we conclude the re were genuine issues of fact which precluded the entry of summary judgme nt in favor of defendants. Although it was uncontroverted that Vendetti used s ome amount of force against Sasa while escorting him to the control center, the re was conflicting evidence concerning whether Sasa acted in any manner to prompt the physical response by Vendetti, the extent of force used by Vendetti agai nst Sasa, and whether the other defendants should have responded to prevent Vendett i from using excessive force. In addition, there were genuine issues of fact conc erning the extent of injury suffered by Sasa, if any.-9-

With respect to the issue of damages, we acknowledg e defendants’ contention that Sasa failed to present sufficient e vidence of injury. Although the evidence on this point is admittedly scarce (Sasa a lleged only that he was injured), we believe Sasa’s allegations concerning the extent of force used by Vendetti, if true, necessarily would have involved the wanton infliction of pain and would be sufficient to constitute an Eighth Amendment violation. See Hudson v. McMillian , 503 U.S. 1, 7 (1992) (“The absence of serious inj ury is . . . relevant to the Eighth Amendment inquiry, but does not end it.”); Northington v. Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992) (significantphysical injury not required because constitutional inquiry focuses on whether there was infliction of pain that was unnecessary and wanton). Stated diff erently, Vendetti’s conduct would have involved more than a “de minimis use[] of physical force,” Hudson , 503 U.S. at 10, and would be actionable under the E ighth Amendment. The judgment of the district court is AFFIRMED in p art, REVERSED in part, and REMANDED for further proceedings consiste nt with this order. Entered for the Court Mary Beck Briscoe Circuit Judge