The Honorable 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 Missouri prisoner, appeals the district court’s1

grant of summary judgment in favor of defendants Larry Dorsey, Virgil

Helton, Ray Bloomer,
and Ron Walters in this civil rights action brought pursuant to 42 U.S.C.

§ 1983. We affirm. 

I.

In his second amended complaint, Berryhill claims that on November

4, 1994, while working in a maintenance job assignment at the prison, he

was approached by four civilian maintenance workers--Dorsey, Helton,

Bloomer, and Walters. In his deposition, Berryhill testified that Bloomer

grabbed him by the shoulders while Helton grabbed his buttocks with one

hand "[b]riefly." (R. at 133.) Berryhill testified that while he was

telling Helton that he "didn't play this" (R. at 128), Walters also grabbed

Berryhill's buttocks for a moment. Berryhill pulled away from them and

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, "Here

he comes." (R. at 147-48.) He did not hear the other defendants say

anything to him. Berryhill 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 free

from cruel and unusual punishment as well as his Fourteenth Amendment right

to bodily integrity. He claims that he suffered asthma attacks and

emotional distress as a result of the incident. The complaint also asserts

one count of common law assault and battery arising from the incident. The

defendants filed a motion for summary judgment on several grounds,

including that Berryhill demonstrated no constitutional violation, that the

defendants, who are civilian employees, were not acting under color of

state law, and that if they were acting under color of state law they are

entitled to 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 court 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 record indicates that he did not participate in any physical touching

and he made no comments during the incident. The magistrate judge

recommended that summary judgment be denied as to the other defendants,

citing a factual dispute over whether a sexual assault or a minor incident

of nonsexual horseplay occurred. The district court did not adopt the

report and recommendation but granted the defendants’ motion for summary

judgment in its entirety. The district court stated that summary judgment

is appropriate “[f]or the reasons set forth in the defendants’ pleadings,”

without 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.3d 1234, 1237 (8th Cir. 1997); Mayard v. Hopwood, 105 F.3d 1226, 1227

(8th Cir.1997). We will affirm the grant of summary judgment if the record

"show[s] that there is no genuine issue as to any material fact and that

the moving 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

from them, we do so in the light most favorable to the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

(1986); Dulany, 132 F.3d at 1237. 

Berryhill challenges the district court's grant of summary judgment,

arguing that the defendants' actions amount to an Eighth Amendment

violation, that the defendants were acting under color of state law, and

that questions of fact preclude a grant of qualified immunity prior to

trial. We first consider whether Berryhill has demonstrated 2
an Eighth Amendment violation, because if not, summary judgment was proper

and we need not address his remaining arguments. 

The Eighth Amendment protects against cruel and unusual punishments.

"Not every governmental action affecting the interests or well-being of a

prisoner is subject to Eighth Amendment scrutiny, however." Whitley v.

Albers, 475 U.S. 312, 319 (1986). "[O]nly the unnecessary and wanton

infliction of pain constitutes cruel and unusual punishment forbidden by

the Eighth Amendment." Id. (internal quotations and alterations omitted).

While an Eighth Amendment claimant must allege and prove the unnecessary

and wanton infliction of pain, the particular standard to be applied

depends upon the kind of conduct of which the claimant complains. Id. at

320. When conditions of confinement are challenged, the deliberate

indifference standard applies. Wilson v. Seiter, 501 U.S. 294, 303 (1991).

To succeed on an Eighth Amendment claim under this standard, the plaintiff

must demonstrate (1) that the conditions were objectively sufficiently

serious or caused an objectively serious injury to the plaintiff, and (2)

that the defendants were deliberately indifferent, or acted with reckless

disregard, to inmate constitutional rights, health, or safety. See

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 employees

is alleged, the question is whether force was applied in a good faith

effort to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm. Wilkins v. Moore, 40 F.3d 954, 958

(8th Cir. 1994) (citing Whitley, 475 U.S. at 320-21; Hudson v. McMillian,

503 U.S. 1, 9 (1992)). 

There is no indication that the incident here involved discipline or

undue force. Berryhill labels the defendants' actions as homosexual

advances, which caused him
asthma attacks and psychological suffering. The evidence produced,

however, does not support his allegations. The record demonstrates that

the defendants were reprimanded for their inappropriate "horse play" (R.

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

Nevertheless, there is no evidence that Berryhill suffered anything more

than a brief unwanted touch on his buttocks. We bear in mind that not

"every malevolent touch by a prison guard [or civilian prison 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 mere friendly horseplay, while Berryhill now

characterizes the incident as a sexual advancement. This dispute does not

amount to a material dispute of fact sufficient to preclude summary

judgment, however, because Berryhill points to no evidence to support his

characterization of the incident. Certainly, sexual or other assaults are

not a legitimate part of a prisoner's punishment, and the substantial

physical and emotional harm suffered by a victim of such abuse are

compensable injuries. See Vosburg 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 we

view the evidence, as we must, in the light most favorable to the

plaintiff. According to Berryhill's deposition testimony, the brief touch

to his buttocks lasted mere seconds, it was not accompanied by any sexual

comments or banter, and he thought the defendants were trying to embarrass

him, not rape him. Berryhill did not assert that he feared sexual abuse

during the incident, and the two brief touches to his buttocks in the

circumstances of this case simply cannot be construed as a sexual assault.

Berryhill points to no evidence other than the fact that he was briefly

touched to support his claim that this was some sort of sexual advancement

or assault.

Furthermore, no objectively serious injury (either physical or

psychological) was shown to have arisen from the incident. In his

deposition testimony, Berryhill asserts that he was humiliated and paranoid

after the incident, but he never sought medical attention for any

psychological or emotional difficulty and no fellow inmates attempted
to sexually assault him after incident. Berryhill also asserted that he

experienced shortness of breath three or four times as a result of the

incident. He has suffered from asthma attacks for several years, however,

and no medical evidence suggested that his shortness of breath on these

occasions resulted from this incident with the defendants. Demonstrating

a serious or permanent injury is not required to make out an Eighth

Amendment claim, but some actual injury must be shown and the extent of the

injury and pain suffered are relevant concerns in determining whether the

conduct amounts to cruel and unusual punishment. White v. Holmes, 21 F.3d

277, 281 (8th Cir. 1994). Berryhill has shown no injury.

The allegations of this case are a far cry from the allegations in

other cases which have ultimately withstood summary judgment. See, e.g.,

Seltzer-Bey v. Delo, 66 F.3d 961, 962-63 (8th Cir. 1995) (reversing a grant

of summary judgment where motions for discovery were pending and the

plaintiff had attested to, among other things, a sexual assault by a prison

official, daily strip searches during which prison officials made sexual

comments about the plaintiff, and one incident where the prison official

conducting the strip search rubbed the plaintiff's buttocks with a

nightstick while making suggestive comments); Watson v. Jones, 980 F.2d

1165, 1166 (8th Cir. 1992) (reversing a grant of summary judgment where the

plaintiffs attested that prison officials were engaging in almost daily,

sexually harassing pat-down searches). We conclude that Berryhill has

failed to create a material dispute of fact on the objective component of

his Eighth Amendment claim. He cannot demonstrate that the unwelcome

touches amounted to unnecessary and wanton infliction of pain. See

Whitley, 475 U.S. at 319. Accordingly, his claim cannot withstand summary

judgment. 

Berryhill contends that we should remand to the district court with

instructions for it to explain the reasons for its grant of summary

judgment. We conclude that a remand is not necessary, because this court

can affirm the district court's summary judgment decision on any basis

supported by the record. See Duffy v. Wolle, 123 F.3d 1026, 1035 n.5 (8th

Cir.1997). Having found a basis for affirmance, we need not
consider Berryhill's remaining arguments. Additionally, the district court

did not abuse its discretion by declining to exercise jurisdiction over the

supplemental state law claim of assault. See 28 U.S.C. § 1367(c)(3)

(permitting district court to decline to exercise supplemental jurisdiction

when it "has dismissed all claims over which it has original

jurisdiction"). 

III.

Accordingly, we affirm the judgment of the district court. 

A true copy.

Attest:

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