* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral 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 3 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JOHNATHAN WILLIAM BAFFORD, Plaintiff-Appellant,

v. CHARLES SIMMONS, Secretary of Corrections, in his individual and official capacity; MICHAEL NELSON, Warden, in his individual and official capacity; K. VAIL, SST., El Dorado Correctional Facility, Defendants-Appellees. No. 04-3136 (District of Kansas) (D.C. No. 02-CV-3253-GTV)

ORDER AND JUDGMENT *

Before EBEL , MURPHY , and McCONNELL , Circuit Judges.
After examining the briefs and the appellate record , this court has determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).-2-

Accordingly, appellant’s motion requesting oral arg ument is denied and the case is ordered submitted without oral argument. Proceeding pro se , Johnathan William Bafford appeals the district co urt’s dismissal of the civil rights complaint he brought pursuant to 42 U.S.C. § 1983. Bafford complains that Defendants have violated his Eight Amendment right to be free from cruel and excessive punishment. He alleg es that a prison guard assaulted him during an incident in the prison. Ba fford sought only monetary damages. The district court ordered the preparation of a Martinezreport and Defendants filed a motion for summary judgment. Martinez v. Aaron , 570 F.2d 317, 319 (10th Cir. 1978). The district court gran ted the motion, concluding that: (1) the claims asserted against the Defendant s in their official capacities were barred by the Eleventh Amendment: (2) the clai ms asserted against defendants Simmons and Nelson in their individual c apacities failed because Bafford had not asserted that either defendant pers onally participated in the alleged use of force; and (3) defendant Vail was en titled to qualified immunity. We have reviewed the record, the appellate briefs, and the applicable law and conclude that the district court’s resolution o f Bafford’s claims was proper. The uncontroverted evidence in the record demonstrates that Bafford instigated a disturbance in the prison and that defendant Vail a cted in response. Despite-3-

Bafford’s argument that a factual dispute exists ov er whether his injuries were caused by defendant Vail or were, instead, self-inf licted, this factual dispute is not material. Even assuming that Bafford’s injurie s were caused by defendant Vail, Bafford has failed to show that the force use d by Vail was applied “maliciously and sadistically” to cause harm ratherthan “in a good-faith effort to maintain or restore discipline.” Hudson v. McMillian 503 U.S. 1, 6 (1992) (quotation omitted). Bafford’s motion requesting permission to file a su pplemental brief is granted . The district court’s order granting summary judg ment to Defendants is affirmed for substantially the reasons stated by the district court. Bafford is reminded that he remains obligated to continue maki ng partial payments until his appellate filing fee is paid in full. See 28 U.S.C. § 1915(b). ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge