## TheHonorable Scott O. Wright, United States District Judge for the Western 1 

## District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-1827

___________ Cortez Berryhill, *

Plaintiff-Appellant, * Appeal from the United States

v. * District of Missouri. Dora Schriro, George Lombardi, * Kelly Lock, *

Defendants, * Larry Dorsey, Virgil Helton, Ray * Bloomer, Ron Walters, *
Defendants- * Appellees. *

* District Court for the Western

*

*

*

*

___________ Submitted: November 17, 1997 Filed: March 6, 1998

___________ Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

___________ HANSEN, Circuit Judge. Cortez Berryhill, a Misso uri prisoner, appeals the district court’s 1 grant o f summary judgment in favor of defendants Larry Dorsey, Virgi l Helton, Ray Bloomer,and Ron Walters in th is civil rights action brought pursuant to 42 U.S.C.

§ 1983. We affirm.

I.

Inhis second amended complaint, Berryhill claims that on Novembe r 4, 1994, while working in a maintenance job assignment at the prison, he
wa s approached by four civilian maintenance workers--Dorsey, Helton , Bloomer, and Walters. In his deposition, Berryh ill testified that Bloomer grabbedhim by the shoulders while Helton grabbed his buttocks with on e hand"[b]riefly." (R. at 133.) Berryhill testified that while he wa s telling Helton that he "didn't play this" (R. at 128), Walters also grabbe d Berryhill's buttocks for a moment. Berryhill pulled away from them an d left the maintenance building feeling that they had intended to embarrass him. He asserted that Dorsey verbally provoked the incident, but the only thing he could remember Dorsey saying was something to the effect of, "Her e he comes." (R. at 147-48.) He did not hear the other defendants sa y anything to him. Ber ryhill said that the whole incident lasted less than a minute or a minute at the most.

In his federal complaint, Berryhill claims that the defendants ' conduct in this incident violated his Eighth Amendment right to be fre e from cruel and unusual punishment as well as his Fourteenth Amendment righ t to bodilyintegrity. He claims that he suffered asthma attacks an d emotional distress as a result of the incident. The complaint also assert s one count of common law assault and battery arising from the incident. Th e defend ants filed a motion for summary judgment on several grounds , including that Berryhill demonstrated no constitutional violation, that th e defendants, who are civilian employees, were not acting under color o f state law, and that i f they were acting under color of state law they are entitledto qualified immunity. The defendants urged the district court not to exercise its pendent jurisdiction over the state law claim.

## Although Berryhill also raised a Fourteenth Amendment claim in his complaint, 2 

## he does not pursue this claim on appeal. "As a general rule, we will consider an issue not raised or briefed in this cour t waived." Stephenson v. Davenport Community Sch. Dist. , 110 F.3d 1303, 1307 n.3 (8th Cir. 1997) (internal quotations omitted). We see no reason to deviate from the general rule here. A magistrate judge's report and recommendation initially recommended that the summary judgment motion be granted as to defendant Dorsey, because the re cord indicates that he did not participate in any physical touching and he made no comments during the incident. The magistrate judg e recommen dedthat summary judgment be denied as to the other defendants , citing a factual dispute over whe ther a sexual assault or a minor incident of nonsex ual horseplay occurred. The district court did not adopt th e rep ort and recommendation but granted the defendants’ motion for summar y judgment in its entirety. The di strict court stated that summary judgment is appropriate “[f]or the reasons set forth in the defendants’ pleadings,” withou t any further explanation of the ruling. (Appellant’s Adden. at A2.) Berryhill appeals.

II.

We review de novo the district court's grant of summary judgment , applying the same standards as the district court. Dulany v . Carnahan , 132 F.3d1234, 1237 (8th Cir. 1997); Mayard v. Hopwood , 105 F.3d 1226, 122 7 (8th Cir.1997). We will affirm the grant of summary judgmen t if the record "show[s] that there is no genuine issue as to any material fact and tha t the mo ving party is entitled to a judgment as a matter of law." Fed. R

. Civ. P . 56(c). When considering the facts and the inferences to be drawn fromthem , we do so in the light most favorable to the nonmoving party

. Matsushi ta Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 58 7 (1986); Dulany , 132 F.3d at 1237.
Berryhill challenges the district court's grant of summary judgment, arg uing that the defendants' actions amount to an Eighth Amendmen t violation, that the defendants were acting under color of state law, an d that ques tions of fact preclude a grant of qualified immunity prior t o trial. We first consider whether Berryhill has demonstrated

2an Eighth Amendment violation, be cause if not, summary judgment was proper

and we need not address his remaining arguments.
The Eighth Amendment protects against cruel and unusual punishments. "Not e very governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny, however." Whitley v

. Alb ers , 475 U.S. 312, 319 (1986). "[O]nly the unnecessary and wanto n inf lictionof pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Id. (inte rnal quotations and alterations omitted). While an Eighth Amendment claimant must allege and prove the unnecessar y and wanto n infliction of pain, the particular standard to be applie d depend s upon the kind of conduct of which the claimant complains. Id. at 320

. When conditions of confinement are challenged, the deliberat e indifference standard applies. Wilson v. Seiter , 501 U.S. 2 94, 303 (1991). To succeed on an Eighth Amendment claim under this standard, the plaintiff
mus t demonstrate (1) that the conditions were objectively sufficientl y seriou s or caused an objectively serious injury to the plaintiff, and (2) that t he defendants were deliberately indifferent, or acted with reckless dis regard, to inmate constitutional rights, health, or safety. Se e Stephens v. Johnson , 83 F.3d 198, 200-01 (8th Cir. 1996); Givens v. Jones , 900 F.2d 1229, 1234 (8th Cir. 1990). When brutality by prison employee s is all eged, the question is whether force was applied in a good fait h eff ort to maintain or restore discipline or maliciously and sadisticall y for th e very purpose of causing harm. Wilkins v. Moore , 40 F.3d 954, 958 (8th C ir. 1994) (citing Whitley , 475 U.S. at 320-21; Hudson v. McMillian , 503 U.S. 1, 9 (1992)).

There is no indicatio n that the incident here involved discipline or und ue force. Berryhill labels the defendants' actions as homosexua l advances, which caused himasth ma attacks and psychological suffering. The evidence produced ,

however, does not support his allegations. The record demonstrates tha t the defendants were reprimanded for their inappropriate "horse play" (R

. at 190), and we have no doubt that their behavior was inappropriate

. Nev ertheless, there is no evidence that Berryhill suffered anything mor e than a brief unwanted touch on his buttocks. We bear in mind that no t "every malevolent touch by a prison guard [or civilian priso n worker] gives rise to a federal cause of action." Hudson , 503 U.S. at 9.
The only dispute lies in the characterization of this incident. The defendants characterize it as mer e friendly horseplay, while Berryhill now characterizes the incident as a s exual advancement. This dispute does not amount to a material dispute of fact sufficient to preclude summar y judgme nt, however, because Berryhill points to no evidence to support his characterization of the incident. Certainly, sexual or other assaults are
no t a legitimate part of a prisoner's punishment, and the substantia l physica l and emotional harm suffered by a victim of such abuse ar e compensable injuries. See Vosbur g v. Solem , 845 F.2d 763, 767 (8th Cir.), cert. denied , 488 U.S. 928 (1988). It would be a distortion, however, to characterize the conduct in this case as a sexual assault, even when w e view t he evidence, as we must, in the light most favorable to th e plaintiff. According to Berryhil l's deposition testimony, the brief touch to his buttocks lasted mere seconds, it was not accompanied by any sexual comments or banter, and he though t the defendants were trying to embarrass him, not rape him. Berryhill did not assert that he feared sexual abus e during the incident, and the two brief touches to his buttocks in th e circumstances of this case simply cannot be construed as a sexual assault. Berryhill points to no evidence other than the fact that he was briefl y touched to support his claim that this was some sort of sexual advancement or assault.
Furthermore, no objectively serious injury (either physical o r psychol ogical) was shown to have arisen from the incident. In hi s deposition testimony, Berryhill asserts that he was humiliat ed and paranoid after the incident, but he never sought medical attention for an y psychological or emotional difficulty and no fellow inmates attemptedto sexuall y assault him after incident. Berryhill also asserted that h e

exp eriencedshortness of breath three or four times as a result of th e incident. He has suffered from a sthma attacks for several years, however, and no medical evidence suggested that his shortness of breath on thes e occasi ons resulted from this incident with the defendants. Demonstrating
a serious or permanent injury is not required to make out an Eight h Amendment claim, but some actual injury must be shown and th e extent of the injury and pain suffered are relevant concerns in determining whether the conduct amounts to cruel and unus ual punishment. White v. Holmes , 21 F.3d 277, 281 (8th Cir. 1994). Berryhill has shown no injury.

The alleg ations of this case are a far cry from the allegations i n other cases which have ultimately withstood summary judgment. See, e.g. , Seltzer-Bey v. Delo , 66 F.3d 961, 962-63 (8th Cir. 1995) (re versing a grant of summar y judgment where motions for discovery were pending and th e plaintiff had attested to, among other things, a sexual assa ult by a prison off icial, daily strip searches during which prison officials made sexua l comments about the plaintiff, and one incident where the prison officia l
con ducting the strip search rubbed the plaintiff's buttocks with a nig htstick while making suggestive comments); Watson v. Jones , 980 F.2 d 1165, 1166 (8th Cir. 1992) (reversing a grant of summary jud gment where the pla intiffs attested that prison officials were engaging in almost daily , sex uallyharassing pat-down searches). We conclude that Berryhill ha s failedto create a material dispute of fact on the objective component of hi s Eighth Amendment claim. He cannot demonstrate that the unwelcom e touches amounted to unnecessary and wanton infliction of pain. Se e Whitley , 475 U.S. at 319. Accord ingly, his claim cannot withstand summary judgment.
Berryhill contends that we should remand to the district court with in structions for it to explain the reasons for its grant of summar y judgme nt. We conclude that a remand is not necessary, because this court
can a ffirm the district court's summary judgment decision on any basi s supported by the record. See Duf fy v. Wolle , 123 F.3d 1026, 1035 n.5 (8th Cir.1997). Having found a basis for affirmance, we need notconsider Berryhill's remaining arguments. Additionally, the district court

did not abuse its discretion by declining to exercise jurisd iction over the suppleme ntal state law claim of assault. See 28 U.S.C. § 1367(c)(3 ) (permitting district court to decline to exercise supplement al jurisdiction when it "has dismissed all claims over which it has origina l jurisdiction").

III.
Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.