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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2009-NMCA-066

Filing Date: June 10, 2009 

Docket No. 27,786

MATTHEW JAMES GRIFFIN,

Plaintiff-Appellant,

v.

SANDRA PENN,

Defendant-Appellee.

APPEAL FROM THE DISTRICT COURT OF SANTA FE COUNTY

Daniel A. Sanchez, District Judge

Matthew James Griffin

Tehachapi, CA

Pro Se Appellant

Hatch, Allen & Shepherd, P.A.

E. W. Shepherd 

Amy M. Cardwell

Albuquerque, NM

for Appellee

OPINION

VANZI, Judge.

{1} Plaintiff, a prisoner pro se, brought excessive force and inadequate medical care

claims against Defendant prison medical director. Defendant moved for summary judgment

arguing that she was not liable under 42 U.S.C. § 1983 (1986) for violating Plaintiff’s rights

under the Eighth Amendment to the United States Constitution. The district court granted

Defendant’s motion for summary judgment, and Plaintiff appealed. We affirm.

I. BACKGROUND
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{2} This case arises out of events that occurred at the Penitentiary of New Mexico in

Santa Fe County. Correctional officers James Lopez and Sergeant John P. Marquez noticed

that Plaintiff had covered the window of his cell door with a towel, a blanket, and a mattress.

Plaintiff’s actions were the second disruption to the normal operation of the North Facility

of the penitentiary that morning and constituted a security risk. When Plaintiff refused to

remove the obstruction, the officers did so by force. Plaintiff was then removed from his cell

and placed in wrist restraints and ankle shackles (collectively, restraints) by officers Larry

Grant and James Lopez. Plaintiff does not dispute that the restraints were applied to him

because he deliberately created a security situation that required the officers to enter his cell

and assert control over him. However, Plaintiff contends that he complied with all directives

of the prison staff and offered no resistance after he was removed from his cell. 

{3} Defendant was, at the time of the incident, a licensed physician and the medical

director for the Penitentiary of New Mexico. Prison regulations state that “[m]edical

personnel shall check the inmate when initially placed in restraints and every two hours

thereafter while in restraints.” According to Defendant, she was not present when Plaintiff

was removed from his cell and placed in restraints. However, after the restraints had been

applied, Defendant looked at Plaintiff’s legs and determined that they were correctly applied

and not too tight. She was able to place her fingers through the restraints. During her

examination, Defendant observed “small abrasions” on Plaintiff’s legs which she considered

“minor skin interruptions.” Other than the minor abrasions, which she did not consider an

“excessive risk to [Plaintiff’s] health and safety,” Defendant did not observe any lacerations

on Plaintiff’s ankles or wrists. 

{4} Plaintiff disputes Defendant’s version of these events. According to Plaintiff,

Defendant was present when the restraints were applied. Plaintiff claims that Defendant did

not place her fingers between the restraints and his legs, and further states that he repeatedly

told Defendant and others that the restraints were too tight and were injuring him. 

{5} The restraints were kept on Plaintiff for roughly four hours. Throughout that period,

and for several hours thereafter, the penitentiary activity logs indicate that Plaintiff

continuously paced in his cell. At approximately 4:00 p.m. the restraints were removed

because they were restricting Plaintiff’s blood circulation, had caused wounds on his ankles,

and because he showed a willingness to comply with staff. Plaintiff asserts that the severity

of the injuries he suffered as a result of the tightened restraints was intensified by a

subsequent infection of the wounds. The infection, Plaintiff claims, resulted from Plaintiff

being forced to urinate on himself because Defendant and the correctional officers

monitoring him allegedly denied Plaintiff access to, or use of, a toilet despite his insistence

that he needed to relieve himself. Plaintiff does not dispute that he was provided medical

treatment for his wounds by prison medical staff at that time and again on at least five other

occasions. 
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{6} In his amended complaint, Plaintiff asserted causes of action against Defendant under

both state and federal law. Defendant filed a motion to dismiss the state law claims which

the district court granted. Defendant subsequently moved for summary judgment on

Plaintiff’s Eighth Amendment prohibition against “excessive and unjustified physical force.”

The district court granted Defendant’s motion and dismissed Plaintiff’s complaint on two

grounds: First, the district court found that, based on the pleadings and a video tape

submitted by Defendant, “Plaintiff was not denied medical care by . . . Defendant, nor was

. . . Defendant indifferent to his medical needs.” Second, the district court found that

“Defendant . . . did not participate in the placement of the [restraints] on . . . Plaintiff, nor

was she present when [restraints] were placed on . . . Plaintiff. She did check the [restraints]

on Plaintiff after they had been applied. Plaintiff cannot establish that Defendant was in

control of this activity.” Thus, the court “agree[d] with . . . Defendant . . . that . . . Plaintiff

is unable to establish an Eighth Amendment [v]iolation against Defendant.” Plaintiff appeals

from this decision and argues that the district court erred in resolving undisputed issues of

fact and that it improperly considered the video tape in making factual determinations. 

II. DISCUSSION

A. Standard of Review

{7} “An appeal from the grant of a motion for summary judgment presents a question of

law” that we review de novo. Tafoya v. Rael, 2008-NMSC-057, ¶ 11, 145 N.M. 4, 193 P.3d

551 (internal quotation marks and citation omitted). “Summary judgment is appropriate

where there are no genuine issues of material fact and the movant is entitled to judgment as

a matter of law.” Id. We review the record in the light most favorable to support a trial on

the merits, Weise v. Washington Tru Solutions, L.L.C., 2008-NMCA-121, ¶ 2, 144 N.M. 867,

192 P.3d 1244, and we “construe all reasonable inferences from the record in favor of the

party that opposed” summary judgment. Hamberg v. Sandia Corp., 2008-NMSC-015, ¶ 7,

143 N.M. 601, 179 P.3d 1209 (internal quotation marks and citation omitted). However, the

party opposing summary judgment has the burden to “show at least a reasonable doubt,

rather than a slight doubt, as to the existence of a genuine issue of fact.” Ciup v. Chevron

U.S.A., Inc., 1996-NMSC-062, ¶ 7, 122 N.M. 537, 928 P.2d 263. To meet this burden, the

party “cannot rely on the allegations contained in its complaint or upon the argument or

contention of counsel to defeat it. Rather, the opponent must come forward and establish

with admissible evidence that a genuine issue of fact exists.” Id. (citations omitted).

B. Eighth Amendment

{8} Claims of denial of appropriate medical treatment as well as excessive force can

violate the Eighth Amendment’s prohibition on cruel and unusual punishment. We discuss

each of these issues in turn as they relate to Plaintiff’s contention that Defendant’s actions

constituted “a deliberate indifference and reckless disregard for the clearly established

constitutional right” to be free from cruel and unusual punishment. 
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1. Denial or Delay of Medical Care

{9} This Court has previously adopted the United States Supreme Court’s holding in

Estelle v. Gamble, that in order to state a cognizable claim that he has been denied adequate

medical treatment in violation of the Eighth Amendment, a “prisoner must allege acts or

omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.”

429 U.S. 97, 106 (1976); see Archuleta v. Goldman, 107 N.M. 547, 549, 761 P.2d 425, 427

(Ct. App. 1987). We have clarified that “[a]ctionable indifference may be demonstrated by

the response of prison doctors to a prisoner’s needs or by the acts of guards intentionally

denying or delaying access to proper medical care.” Archuleta, 107 N.M. at 549-50, 761

P.2d at 427-28. The “deliberate indifference” standard includes two components: the first

objective and the second subjective. Cordova v. LeMaster, 2004-NMSC-026, ¶ 30, 136

N.M. 217, 96 P.3d 778 (internal quotation marks and citation omitted). To satisfy the

objective component of the deliberate indifference test and demonstrate a cognizable

violation of the Eighth Amendment, Plaintiff must demonstrate an injury that is “sufficiently

serious.” Id. The subjective component requires a showing that an officer acted with a

sufficiently culpable mental state. Id. Thus, indications that an inmate has a “serious” need

for medical treatment include the existence of an injury that “a reasonable doctor or patient

would find important and worthy of comment or treatment; the presence of a medical

condition that significantly affects an individual’s daily activities; or the existence of chronic

and substantial pain.” Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996) (internal

quotation marks and citation omitted). 

{10} There is no dispute—and Plaintiff’s own allegations show—that he was provided

medical treatment for his leg injuries after the restraints were removed, and that he continued

to receive medical treatment for several weeks afterward. Nor does Plaintiff complain about

the adequacy of the medical care he received. Rather, Plaintiff argues that he did not receive

medical treatment on a timely basis and that a dispute of fact exists as to whether Defendant

“delayed or denied [him] medical treatment between 12:36 p.m. and 4:00 p.m.” Thus, our

analysis is limited to whether Plaintiff’s contention that the delay of medical care during this

narrow window of time constitutes a cognizable claim under the Eighth Amendment. 

{11} In cases where treatment was delayed rather than denied altogether, the inmate must

allege facts showing he suffered “substantial harm” as a result of the delay. Garrett v.

Stratman, 254 F.3d 946, 950 (10th Cir. 2001). The “substantial harm” or objective element

of this test is satisfied by a showing that a delay in treatment resulted in “lifelong handicap,

permanent loss, or considerable pain” and the “deliberate indifference” or the subjective

element is satisfied by facts indicating that prison officials were aware of facts from which

they could infer that the delay would cause a substantial risk of serious harm and did, in fact,

draw that inference. Id. at 949-950. Under this standard, “[d]elays that courts have found

to violate the Eighth Amendment have frequently involved life-threatening situations and

instances in which it is apparent that delay would exacerbate the prisoner’s medical

problems.” Grant v. Bernalillo County Detention Ctr., No. 98-2193, 1999 WL 157415, at

*3 (10th Cir. Mar. 23, 1999). In contrast, in instances in which delays in providing treatment
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involve less serious medical conditions, the Eighth Amendment may not be implicated. See,

e.g., Wesson v. Oglesby, 910 F.2d 278, 283 (5th Cir. 1990) (concluding that a delay in

obtaining treatment for a prisoner’s swollen, bleeding wrists caused by tight handcuffs was

insufficient to establish an Eighth Amendment claim); Martin v. Gentile, 849 F.2d 863, 871

(4th Cir. 1988) (concluding that a fourteen hour delay in obtaining treatment for a sliver of

glass in a detainee’s palm did not constitute a violation of the Eighth Amendment). See

Jackson v. Simmons, No. CIV. A. 99-3363-KHV, 2001 WL 1456859, at *6 (D. Kan. Nov.

2, 2001) (where an inmate alleged excessive force including putting handcuffs on too tightly

which caused severe pain and swelling, the court found the injury to the plaintiff’s wrists

may be insufficient by itself to constitute an Eighth Amendment violation). 

{12} In this case, Plaintiff argued to the district court that as a result of the delay in

medical attention, his injuries were “significant,” required “painful medical treatment,” and

resulted in “tissue scarring.” We note first that Plaintiff has not explained what the

“significant” injuries were, nor has he produced evidence that the alleged injuries were the

result of the short delay in medical treatment. Such conclusory allegations without specific

supporting facts are not sufficient to create a genuine issue of material fact under the

summary judgment standard. 

{13} Further, we are unwilling, as a matter of law, to reach the conclusion that a bare

assertion of “tissue scarring” on Plaintiff’s ankles constitutes either a lifelong handicap or

permanent loss. It is well established that when a prisoner claims that a delay in receiving

medical treatment amounts to inadequate medical care, he must place verifying medical

evidence in the record to establish the detrimental effect of the delay in medical treatment.

Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). Plaintiff has failed to do so, and we

therefore hold that his allegations of tissue scarring, by itself, are insufficient to support a

constitutional claim amounting to inadequate medical care. 

{14} With respect to whether Plaintiff demonstrated that he experienced considerable pain,

our review of the record reveals that the only pain Plaintiff specifically identified was the

“painful medical treatment” required to treat his injuries. In light of the fact that Plaintiff

was required to—but did not—submit any further evidence of the nature or severity of his

pain, we must conclude that he has not met the requirement of suffering considerable pain

as that term is defined for purposes of the Eighth Amendment. See Kikumura v. Osagie, 461

F.3d 1269, 1293 (10th Cir. 2006) (recognizing that a plaintiff’s claim of twelve hours of

tormenting, debilitating pain accompanied by severe vomiting, along with his significant

physical injuries, was enough to satisfy the substantial harm requirement of the objective

component of a deliberate indifference claim), overruled on other grounds by Robbins v.

Oklahoma, 519 F.3d 1242, 1246 (10th Cir. 2008); Mata v. Saiz, 427 F.3d 745, 755 (10th Cir.

2005) (holding that the plaintiff’s evidence of severe chest pain for several days prevented

summary judgment on the objective component of a prisoner’s Eighth Amendment claim

involving inadequate medical care); Oxendine v. Kaplan, 241 F.3d 1272, 1278 (10th Cir.

2001) (finding that “considerable pain [experienced] while [a] finger continued to rot,” can

constitute substantial harm); Sealock v. Colorado, 218 F.3d 1205, 1210 (10th Cir. 2000)
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(holding that for purposes of summary judgment, the objective element was met by evidence

of severe pain for several hours). On the record before us, we have no basis to evaluate

Plaintiff’s claim in light of the well-settled principle that “not every twinge of pain suffered

as the result of delay in medical care is actionable.” Id.

{15} Accordingly, we conclude that while Plaintiff may have experienced a several-hour

delay in treatment, he has not identified any substantial harm resulting from the delay in

treatment. Finally, we determine that Plaintiff has asserted no facts plausibly suggesting

that Defendant acted with deliberate indifference to his medical needs. Rather, the

undisputed evidence demonstrates to the contrary as Plaintiff was seen and treated by

Defendant and other medical staff on several occasions. We therefore agree with the district

court’s finding that Plaintiff’s complaint fails to state an Eighth Amendment claim for

inadequate medical care. 

2. The Restraints and Excessive Force

{16} After incarceration, the Eighth Amendment prohibits “the unnecessary and wanton

infliction of pain” on prisoners. Graham v. Connor, 490 U.S. 386, 399 n.11 (1989) (internal

quotation marks and citation omitted). The “core judicial inquiry” for an Eighth Amendment

excessive force claim is “whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, 503

U.S. 1, 7 (1992). In reviewing a prison guard’s use of force, the court must give “wideranging deference” to the measures taken with the intention of reducing breaches of

discipline. See Whitley v. Albers, 475 U.S. 312, 321-22 (1986) (internal quotation marks and

citation omitted). 

{17} On appeal, Plaintiff argues that the district court improperly resolved the following

disputed material facts when it granted summary judgment on his excessive force claim in

Defendant’s favor: (1) whether Defendant participated in the restraint of Plaintiff, (2)

whether Defendant was present, (3) whether Defendant was in control of the activity, and

(4) the circumstances and manner in which Defendant checked the restraints which bound

Plaintiff. Plaintiff claims that, contrary to the district court’s findings, Defendant was

present when the restraints were applied and thereafter while he was in the medical holding

cell. Further, he contends that despite his repeated complaints, Defendant refused to modify

or adjust the restraints. Even accepting every allegation made by Plaintiff as true, we

conclude that the allegations fail to establish an Eighth Amendment claim of excessive force

by Defendant as a matter of law.

{18} In the context of unduly tight handcuffing, the Tenth Circuit has held that, if

established, such conduct could constitute excessive force if a plaintiff alleges: (1) “some

actual injury that is not de minimis, be it physical or emotional,” and (2) that the officer

ignored the “plaintiff’s timely complaints . . . that the handcuffs were too tight.” Cortez v.

McCauley, 478 F.3d 1108, 1129 (10th Cir. 2007) (en banc) (emphasis added). Thus,

although the Tenth Circuit has consistently rejected a bright-line rule requiring a plaintiff to
1 Many of these cases implicate the Fourth Amendment. We recognize that excessive

force claims utilize different standards under the Fourth and Eighth Amendments. Compare

Graham, 490 U.S. at 397 (test is one of objective reasonableness under the Fourth

Amendment) with Hudson, 503 U.S. at 8 (test under the Eighth Amendment is a subjective

test which inquires as to the subjective good faith of the officers). The differing standards

make clear that the Fourth Amendment provides greater protection to plaintiffs on claims of

excessive force than does the Eighth Amendment. As such, we have no trouble concluding

that the analysis set forth in the cited Fourth Amendment cases involving excessive force in

the placing of handcuffs are, at the very least, equally applicable to Plaintiff’s Eighth

Amendment claim here.

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demonstrate physical injury when bringing an excessive force claim, see Holland ex rel.

Overdorff v. Harrington, 268 F.3d 1179, 1195 (10th Cir. 2001), it has nevertheless required

that a plaintiff show “some actual injury” when an excessive force claim relies upon unduly

tight handcuffing. Cortez, 478 F.3d at 1129. 

{19} Applying these principles, Plaintiff in this case claims that he “repeatedly notified”

Defendant and others “that the restraints had been applied too tightly, [and] that the restraints

were injuring [him].” Plaintiff asserts that despite his complaints, Defendant refused to

adjust or modify the restraints. For purposes of summary judgment, we assume that Plaintiff

has presented evidence that Defendant ignored his “timely complaints . . . that the handcuffs

were too tight.” Id. 

{20} Even if the force applied to Plaintiff was unreasonable, however, Plaintiff has not

presented any evidence that he suffered a permanent “actual injury” as a result of the

handcuffing. Id. Further, allegations of pain or injury without proof in the form of medical

records, or by other competent evidence, cannot prove an injury. See Crumley v. City of St.

Paul, 324 F.3d 1003, 1008 (8th Cir. 2003) (holding that, because Plaintiff did not submit

medical records documenting that bleeding wrists as a consequence of overly tightened

handcuffs resulted in a long term injury, the plaintiff’s Section 1983 claim in which she

alleged excessive force failed); Foster v. Metro. Airports Comm’n, 914 F.2d 1076, 1082 (8th

Cir.1990) (stating that medical records are required for the plaintiff to prove claimed nerve

damage from being handcuffed too tightly); Montes v. Ransom, 219 Fed. Appx. 378, 381

(5th Cir. 2007), cert. denied, ___U.S.___, 128 S. Ct. 705 (2007) (“[A]dmissible medical

evidence establishing some injury is required to satisfy the injury requirement of an

excessive force claim based on the application of handcuffs.”); Oliver v. City of Minneapolis,

No. Civ. 04-3022-PAMRLE, 2005 WL 2406035, at *6 (D. Minn. Sept. 27, 2005) (Plaintiff’s

claimed permanent injuries were deemed temporary, minimal injuries, because they were not

supported by medical records).1

 

{21} Plaintiff has stated that he had to undergo painful medical treatment for several

weeks and that he has suffered tissue scarring as a result. Although Plaintiff contends that

his injuries were as a result of the time he spent in restraints, he has offered no medical
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evidence to support that claim. The “medical” records submitted by Plaintiff in opposition

to the motion for summary judgment are mostly shift post logs indicating that Plaintiff was

transported to the medical unit. They contain no findings of any trauma and, at the most,

indicate that Plaintiff’s legs were cleaned and re-bandaged by medical staff. Well settled

precedent compels us to conclude that Plaintiff’s medical injuries—lacerations and

scarring—are de minimis injuries because any alleged permanent injuries are not supported

by medical evidence. Since Plaintiff has failed to produce admissible medical evidence of

any serious or permanent physical or psychological injury from the placement of the

restraints, his constitutional claim under the Eighth Amendment necessarily fails. Therefore,

his claim of excessive force fails as a matter of law.

C. Video Tape

{22} Plaintiff alleged that the district court erred in using a videotape showing Defendant

examining his legs after he was placed in restraints to decide disputed issues of fact.

However, having resolved Plaintiff’s claim based solely on his inability to demonstrate an

Eighth Amendment violation, we do not address Plaintiff’s objections regarding the district

court’s use of the videotape for purposes of summary judgment. 

III. CONCLUSION

{23} For the foregoing reasons, we affirm.

{24} IT IS SO ORDERED.

____________________________________

LINDA M. VANZI, Judge

WE CONCUR:

____________________________________

MICHAEL D. BUSTAMANTE, Judge

____________________________________

MICHAEL E. VIGIL, Judge

Topic Index for Griffin v. Penn, No. 27,786

AE APPEAL AND ERROR

AE-PR Pro Se Representation on Appeal

AE-SR Standard of Review

CR CIVIL RIGHTS

CR-PC Prison Conditions
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CR-SE Section 1983 Actions

CA CRIMINAL PROCEDURE

CA-PS Pro Se

CP CIVIL PROCEDURE

CP-SJ Summary Judgment

CT CONSTITUTIONAL LAW

CT-CU Cruel and Unusual Punishment

CT-EF Excessive Force