* This order and judgment is not binding precedent, e xcept under the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

### JUN 2 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

JOSE M. ESCOBAR,

Plaintiff-Appellant,

v. ARISTEDES ZAVARAS, DONICE NEAL, GARY WATKINS, J. EARLY, R. RODENBECK, and A. MONTOYA,

Defendants-Appellees. No. 97-1303 (D.C. No. 96-M-107) (D. Colo.)

ORDER AND JUDGMENT *

Before BALDOCK , EBEL , and MURPHY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Plaintiff, who is in the custody of the Colorado De partment of Corrections, commenced a pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging violation of his Eighth Amendment, due process and equal protection rights, retaliation, and intentional infliction of emotiona l distress. The magistrate judge recommended that defendants’ motion for summary jud gment be denied as to the Eighth Amendment, retaliation, and emotional distre ss claims. After reviewing the magistrate judge’s recommendation de novo, the district court disagreed with the recommendation and granted summary judgment in favor of defendants on all claims. Plaintiff appealed. We vacate and remand for further proceedings.
I. Background In his complaint, plaintiff alleged that he had mad e several requests that defendants Rodenbeck and Montoya, prison guards, re frain from slamming his tray slot with excessive and unnecessary force and making racial comments to him. According to plaintiff, defendant Montoya ind icated to plaintiff that he slammed the tray slot because plaintiff complained about him to his superiors and filed law suits against prison employees. Plaintif f further alleged that after defendant Rodenbeck “crumbled” a picture of plainti ff’s fiancé and threw it to the floor, plaintiff felt much emotional pain and angui sh. See R. tab 3 at 5-6. About ten minutes after this incident, plaintiff asked de fendant Rodenbeck why he had destroyed the picture. At the time, plaintiff was on his knees in his cell holding1 In his second claim for relief, plaintiff also alle ged racial discrimination

and demotion from security level III to security le vel II without due process. SeeR. tab 3 at 8-9. The district court ruled againstplaintiff on these allegations. Plaintiff’s mere mention of them in his reply brief on appeal is insufficient for our consideration. See Coleman v. B-G Maintenance Management of Colo., In c. , 108 F.3d 1199, 1205 (10th Cir. 1997). -3- onto the tray slot with his little finger between the tray slot and the door. See id. at 5. Defendant Rodenbeck allegedly told plaintiff that he could now “snitch” on defendant Rodenbeck and proceeded to slam “the tray slot on the plaintiff[’]s little finger, tearing a piece of flesh from it andbreaking a bone in the finger.” Id. at 5-6, 11. Defendant Rodenbeck also allegedly in formed plaintiff that he was trying to break plaintiff’s hand in order to st op him from filing law suits.
See id. at 6. In his first claim for relief, plaintiff contended that defendant Rodenbeck violated his “right to be free from cruel and unusu al punishment by knowingly, deliberately and intentionally caus[ing] injury andharm to the plaintiff by breaking and smashing his finger.” Id. at 7. Furthermore, he maintained that defendants Rodenbeck and Montoya maliciously, sadis tically, and for no reason caused him pain and suffering. Plaintiff’s second claim for relief alleged due process and equal protection violations based on th e above facts. 1 See id. at 8-9. In his third claim for relief, plaintiff alleged de fendants Rodenbeck and Montoya caused him physical pain in retaliation for filing law suits and bringing their-4-

alleged misconduct to the attention of their superi ors. See id. at 9-10. Plaintiff’s fourth claim asserted that defendants caused him me ntal and emotional distress by their actions. See id. at 10-11. First, the magistrate judge recommended dismissal o f defendants Zavaras, Neal, Watkins, and Early for lack of personal parti cipation. See id. tab 67 at 2-3. The magistrate judge recommended denial of defendants’ motion for summary judgment on the Eighth Amendment claim due to a dis puted issue of material fact: whether defendant Rodenbeck acted with deliberate i ndifference in slamming the tray slot door on plaintiff’s finger causing it to break. See id. at 3-4. The magistrate judge determined the other instances of defendants Rodenbeck and Montoya slamming the tray slot door and use of raci al epithets were not constitutional violations. See id. at 4. With regard to the claim of retaliation, th e magistrate judge recommended denial of summary judg ment based on plaintiff’s allegation that defendant Rodenbeck’s actions of crumpling the picture of plaintiff’s fiancé and slamming the tray slot door on plaintiff’s finger were done in retaliation for his filing of law suits. See id. at 6. The magistrate judge recommended that summary judgment be granted in fav or of defendant Montoya, however, because plaintiff alleged no facts to supp ort a claim of retaliation by him. See id. Additionally, the magistrate judge determined summary judgment was not appropriate on the intentional infliction o f mental and emotional distress-5-

claim since plaintiff met the threshold to overcome a motion for summary judgment on his Eighth Amendment claim. See id. at 6-7. Upon de novo review, the district court determined plaintiff failed to show a triable claim for cruel and unusual punishment. See id. tab 73 at 2. Without explanation, the court rejected plaintiff’s content ion of a broken finger allegedly caused by defendant Rodenbeck with the intent to in flict pain and suffering.
See id. Additionally, the district court concluded any cl aim of mental and emotional injury from other conduct of defendant Ro denbeck was not protected by due process and equal protection guarantees and was barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e), which requires the showing of a physical injury before a prisoner may bring an ac tion for mental or emotional injury. See R. tab 73 at 2. The district court decided the br oken finger was not an injury connected with the mental and emotional d istress claim. See id.

II. Standard of Review We review a district court’s grant of summary judgm ent de novo, viewing the evidence in the light most favorable to the non movant. See Seymore v. Shawver & Sons, Inc. , 111 F.3d 794, 797 (10th Cir.), cert. denied , 118 S. Ct. 342 (1997). Summary judgment is appropriate only if th ere is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.
Seeid.2 The magistrate judge determined that there was a ge nuine issue of material

fact whether defendant Rodenbeck acted with deliber ate indifference. The unnecessary and wanton infliction of pain required for an Eighth Amendment violation “varies according to the nature of the al leged constitutional violation.” SeeHudson v. McMillian , 503 U.S. 1, 5 (1992). The deliberate indifferenc e standard applies, for example, when a prisoner alle ges that prison officials did not attend to serious medical needs. See id. at 5-6 (recognizing that providing medical care does not compete with administrative c oncerns). In a prison disturbance context, however, the deliberate indiff erence standard does not apply. Rather, the relevant inquiry is whether force was applied in good faith to maintain or restore discipline or maliciously and sadistical ly with the intent to cause harm. See id. at 6-7 (citing Whitley , 475 U.S. at 320-21). We conclude the magistrate judge incorrectly sugges ted that the deliberate indifference standard applied. Instead, because pl aintiff alleges excessive force in violation of the Eighth Amendment, the proper st andard is “whether force was applied in a good-faith effort to maintain or resto re discipline, or maliciously and sadistically to cause harm.” Id. Although the standard is different than the one suggested by the magistrate judge, plaintiff’s alle gations are still sufficient to assert a genuine issue of material fact. -6- III. Discussion of Merits A. Eighth Amendment We disagree with the district court’s determinationthat plaintiff did not assert a triable Eighth Amendment claim. The unnec essary and wanton infliction of pain by a prison official is prohibited by the E ighth Amendment. See Whitley v. Albers , 475 U.S. 312, 319-21 (1986). The district court failed to specifically indicate why it rejected the magistrate judge’s determination that there was a g enuine issue of material fact with regard to this Eighth Amendment claim. 2It appears that the district court-7-

may have believed that a broken finger was not a su fficient injury for an Eighth Amendment claim. See R. tab 73 at 2 (“The only physical injury claimed to have resulted from the conduct of any of the defendants is the allegation that [plaintiff] sustained a broken finger when [defendant] Rodenbec k slammed the tray slot door closed on the plaintiff’s hand. . . . Contrary to the view expressed in the recommendation, the plaintiff has failed to show th at there is a triable claim for cruel and unusual punishment.”). If this was the b asis for the district court’s decision, we disagree. Significant physical injuryis not required. See Hudson v. McMillian , 503 U.S. 1, 10 (1992) (bruises, swelling, loosene d teeth, and cracked dental plate are not de minimis injuries); Mitchell v. Maynard , 80 F.3d 1433, 1440 (10th Cir. 1996) (plaintiff sustained cuts, bruises, swollen hand, and possible broken fingers from beating by guards); No rthington v. Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992) (significant p hysical injury not required because constitutional inquiry focuses on whether there was infliction of pain that was unnecessary and wanton); Adams v. Hansen , 906 F.2d 192, 194 (5th Cir. 1990) (allegation that guard smashed plaintiff’s fi ngers in door of small opening in cell door and fingers were lacerated and needed stitches was sufficient allegation of significant injury). Plaintiff alleged his broken finger was caused by d efendant Rodenbeck’s deliberate, intentional, malicious, and sadistic co nduct and provided facts to3 To the extent plaintiff claims any emotional and me ntal distress due to

racial epithets, we agree with the district court that there was no constitutional violation. See Collins v. Cundy , 603 F.2d 825, 827 (10th Cir. 1979) (verbal abuse is not constitutional violation actionable un der § 1983). -8- support this allegation. To the contrary, defendant Rodenbeck argued in the summary judgment motion that his actions, at most, were negligent. See R. tab 48 at 8. Because there is an issue of fact concerning this Eighth Amendment claim, we vacate the grant of summary judgment and remand to the district court for further proceedings.

B. Mental and Emotional Distress The district court rejected any claims of mental an d emotional distress not related to the broken finger on the ground that def endant Rodenbeck’s conduct did not violate due process and equal protection gu arantees and that any claims are barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e). On appeal, plaintiff argues that his mental and emotional distress arose from the broken finger, and he should have alleged only one claim r ather than both Eighth Amendment and mental and emotional distress claims. Plaintiff’s pro se complaint should be liberally construed, see Haines v. Kerner , 404 U.S. 519, 520-21 (1972), as asserting that he suffered emotio nal and mental distress due to the injury to his finger. 3 See R. tab 3 at 10-11. We, therefore, conclude the district court erred in granting summary judgment o n the mental and emotional4 Because we conclude the mental and emotional distre ss claim relates to the

Eighth Amendment claim alleging physical injury, we need not consider whether the Prison Litigation Reform Act applies. -9- distress claim. 4Accordingly, we remand to the district court to c onsider the mental and emotional distress claim along with the Eighth Amendment claim in the first instance. Cf. Miller v. Glanz , 948 F.2d 1562, 1568 (10th Cir. 1991) (if plaintiff’s Eighth Amendment rights were violated h e potentially may recover for emotional distress).

C. Retaliation The magistrate judge recommended that summary judgm ent be denied as to the retaliation claim against defendant Rodenbec k. Although the district court indicated that it had reviewed the case de novo, itfailed to address this recommendation in its order granting summary judgme nt relief. Accordingly, we remand for the district court to address this cl aim. See R. Eric Peterson Constr. Co. v. Quintek, Inc. (In re R. Eric Peterso n Constr. Co.) , 951 F.2d 1175, 1182 (10th Cir. 1991) (appropriate to remand to dis trict court to consider issue in first instance).
IV. Appointment of Counsel Plaintiff argues in his reply brief on appeal that the district court erred in refusing to appoint counsel. The magistrate judge, citing 28 U.S.C. § 1915(d) and-10-

Mallard v. United States District Court , 490 U.S. 296 (1989), denied appointment of counsel on the grounds that counsel cannot be ap pointed in this type of case.
See R. tab 43. Mallardis not dispositive of the issue. While it is true that § 1915(d) does not authorize the district court to require an atto rney to represent an indigent defendant in a civil case, see Mallard , 490 U.S. at 305, it does allow the court to make an appropriate request that legal assistanc e be provided, see id. at 308. The district court did not make such a request on p laintiff’s behalf. Plaintiff presumably now argues that the failure to make sucha request was error. The decision whether to request counsel for an indi gent inmate under § 1915(d) is within the sound discretion of the dis trict court. See Bee v. Utah State Prison , 823 F.2d 397, 399 (10th Cir. 1987). Denial of co unsel should not be overturned absent a denial of fundamental fairne ss impinging on due process rights. See Long v. Shillinger , 927 F.2d 525, 527 (10th Cir. 1991) (citing Maclin v. Freake , 650 F.2d 885, 886 (7th Cir. 1981)). In deciding whether to appoint counsel, “the district court should consider a vari ety of factors, including the merits of the litigant’s claims, the nature of the factual issues raised in the claims, the litigant’s ability to present his claims, and the complexity of the legal issues raised by the claims.” Id. ; see also Rucks v. Boergermann , 57 F.3d 978, 979-11-

(10th Cir. 1995) (if plaintiff presents colorable c laim, district court should consider nature of factual issues and ability of pl aintiff to investigate facts). The district court did not discuss these factors. We decline to first independently consider the request for appointment of counsel. See id. (court of appeals “may” independently examine propriety of request for counsel). Instead, in light of our decision to remand on thre e substantive issues, we also remand for the district court to consider the relev ant factors and address plaintiff’s request for appointment of counsel. We suggest no outcome on remand.
V. Discovery Plaintiff also argues in his reply brief that the d istrict court erred in failing to grant further time for discovery. We do not address this issue as plaintiff may again request an opportunity for further discovery in the district court. The judgment of the United States District Court fo r the District of Colorado is VACATED as to the issues considered in this appeal. The action is REMANDED for further proceedings. The mandate s hall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge