* This order and judgment is not binding precedent, e xcept under the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

### JUL 20 2000 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

LOUIE ARCHULETA, Plaintiff-Appellant,

v. No. 00-2033 FLOYD MARSHALL; ESTER CADENA; ANTHONY DELGADO; RUBEN ARCHULETA; JAMES MULHERON, Sergeant; Correctional Officers, Southern New Mexico Correctional Facility, Defendants-Appellees. (D.C. No. CIV-98-449-MV/DJS) (D.N.M.)

ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, EBEL and BRISCOE, Circuit Judges.
After examining the briefs and appellate record, th is 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). T he case is therefore ordered submitted without oral argument.1 On July 13, 1998, the district court sua sponte dismissed Archuleta’s

claims of due process violations, denial of legal a ccess, denial of medical treatment, conspiracy, unsanitary conditions, and d enial of nutritious diet. The district court declined to exercise jurisdiction ov er Archuleta’s state law claims (continued...) 2 Plaintiff Louie Archuleta appeals the district court’s order granting defendants summary judgment on his claims of Eighth Amendment violations, brought under 42 U.S.C. § 1983. We exercise jurisd iction pursuant to 28 U.S.C. § 1291 and affirm in part, reverse in part, and rem and for further proceedings.
I. Archuleta was incarcerated at the Southern New Mexi co Correctional Facility in Las Cruces, New Mexico, when he filed this § 1983 complaint against defendants Floyd Marshall, Ester Cadena, James Mulh eron, Anthony Delgado, Ruben Archuleta, and others on April 16, 1998. Archuleta alleged, inter alia , that his Eighth Amendment rights were violated by d efendants’ use of excessive force. Archuleta claimed that on January 20, 1998, Marshall, Cadena, and Mulheron attacked and beat him, resulting in bodilyharm, pain, and injuries to his right hand center finger, thumb, right ankle, and left hand center fingernail. On April 29, 1998, Archuleta filed a second § 1983 complaint, claiming, inter alia , that on March 4, 1998, Delgado and Ruben Archulet a attacked him, kicked and struck him, and caused pain and permanent damag e to his back, right side hernia, left shoulder, right hand ligaments, and thumb. 1 The district court treated1 (...continued)

and dismissed those claims without prejudice. The district court then dismissed defendants the State of New Mexico, New Mexico Department of Corrections, Jaysen Sena, Chris Barela, Jimmy Valles, Donna Simo netti, Eva (Elsie) Ramirez, Ralph Robles, Richardo Salayandia, Rudy Ibarra, Est evan Flores, Lupe Martinez Marshall, Ronald Lytle, and John Shanks. Archuletadoes not appeal these dismissals and has now waived any appeal of those issues. See State Farm Fire & Cas. Co. v. Mhoon , 31 F.3d 979, 984 n.7 (10th Cir. 1994) (noting that failure to raise issue in opening brief waives the point). Th erefore, we affirm the district court’s dismissal of these claims and defendants. 3 the two complaints as a single action. Defendants filed a motion for summary judgment, con tending they did not use excessive force against Archuleta and Archuletasuffered no injuries from the alleged force. Over Archuleta’s objection, the dis trict court adopted the magistrate’s recommendation, granted defendants’ mo tion for summary judgment, and dismissed Archuleta’s complaint.
II. We review the grant of summary judgment de novo, vi ewing the record in the light most favorable to the nonmoving party. White v. State of Colorado , 82 F.3d 364, 366 (10th Cir. 1996). “Summary judgment is appropriate only if there are no genuinely disputed material issues of fact and the moving party is entitled to judgment as a matter of law.” Id. On appeal, Archuleta raises two issues: (1) whether the district court applied the correct lega l standard to his Eighth Amendment excessive force claim, and (2) whether th e district court failed to4

consider evidence that he was denied medical care.

Proper standard for Eighth Amendment excessive forc e claim The magistrate recommended granting defendants’ mot ion for summary judgment, concluding Archuleta failed to show he su ffered more than de minimus injury from defendants’ actions. The extent of the plaintiff’s injury is not determinative in assessing whether an Eighth Amendm ent violation occurred. The inquiry for Eighth Amendment excessive force cl aims by convicted prisoners is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Northington v. Jackson , 973 F.2d 1518, 1523 (10th Cir. 1992) (citing Hudson v. McMillian , 503 U.S. 1, 6 (1992)). “The ‘malicious and sadistic’ r equirement applies regardless of whether the plaintiff has alleged significant ph ysical injury, for the ultimate constitutional inquiry is directed at whether an un necessary and wanton infliction of pain has occurred.” Id. (internal quotations omitted). The magistrate didnot address the alleged force or examine whether it was excessive, but based his recommendation on the conclusion that Archuleta suf fered only de minimus injury. The district court erred in not considerin g the alleged force and in using limited physical injury as the sole basis for grant ing summary judgment on Archuleta’s Eighth Amendment excessive force claim. See id. (noting that5

although “[t]he extent of injury may be relevant in determining whether corrections officers unnecessarily and wantonly inf licted pain,” “its absence does not end the inquiry”). The magistrate also noted that 42 U.S.C. § 1997e(e) requires more than de minimus injury before Archuleta could bring the act ion. Section 1997e(e) provides that “[n]o Federal civil action may be bro ught by a prisoner confined in a jail, prison, or other correctional facility, formental or emotional injury suffered while in custody without a prior showing o f physical injury.” Archuleta sought declaratory and injunctive relief, compensat ory damages for physical and emotional injuries, and punitive damages. The phys ical injury requirement applies only to Archuleta’s emotional injury claim. The case upon which the magistrate relied, Siglar v. Hightower , 112 F.3d 191, 193 (5th Cir. 1997), involved an interpretation of Eighth Amendment juri sprudence as requiring more than de minimus injury. As noted above, this circu it has not taken that approach. Further, e ven if Archuleta failed to make the required physi cal injury showing under § 1997e(e), his request for declaratory and i njunctive relief would remain, and possibly his request for punitive damages. See Perkins v. Kansas Dep’t of Corrections , 165 F.3d 803, 808 & n.6 (10th Cir. 1999) (stating that “§ 1997e(e) does not affect actions for declaratory or injuncti ve relief” and may not affect punitive damages claims).6

Denial of medical care Archuleta alleges the district court failed to cons ider evidence that he was denied medical care. The district court sua sponte dismissed Archuleta’s denial of medical care claim on July 13, 1998, concluding Archuleta failed to allege a serious medical need. Archuleta’s notice of appeal to this court is limited to the magistrate’s proposed findings and recommended disp osition of September 29, 1999, and the district court’s order and judgment o f January 25, 2000, neither of which addressed the denial of medical care claims. In his reply brief, Archuleta admits he did not raise the issue in his original l awsuit. Archuleta has not preserved this issue for appeal. See Fed. R. App. P. 3(c) (stating that the noticeof appeal must designate the order from which the appellant appeals); TeleCommunications, Inc. v. Commissioner , 104 F.3d 1229, 1232 (10th Cir.1997) (noting that “[g]enerally, an appellate court will not consider an issue raised for the first time on appeal”).
III. The judgment of the district court is AFFIRMED IN P ART, REVERSED IN PART, and REMANDED for further proceedings on Ar chuleta’s Eighth Amendment excessive force claim. Entered for the Court Mary Beck Briscoe Circuit Judge7