F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                           JUL 15 1999
                                     TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                  Clerk

 NATHANIEL JACKSON,

           Plaintiff - Appellant,
 vs.                                                     No. 98-7181
                                                    (D.C. No. 97-CV-60-S)
 RON WARD, Warden of OSP; JERRY                          (E.D. Okla.)
 KIRKPATRICK, CO II, Lieutenant;
 CURTIS HOOD, CO I, Sergeant; C.
 GILLEY, CO I; CARL BORNHIEM,
 CO I; PAUL BROWN, CO II; C.
 INGRAM, CO I; D. PETTY, CO II; J.
 GIADRONE, CO I,

           Defendants - Appellees.


                              ORDER AND JUDGMENT *


Before ANDERSON, KELLY, and BRISCOE, Circuit Judges. **


       Plaintiff-Appellant Nathaniel Jackson, an inmate appearing pro se and in

forma pauperis, appeals from the district court’s dismissal of his civil rights


       *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
claims under 42 U.S.C § 1983, alleging use of excessive force in violation of the

Eighth Amendment and denial of due process in violation of the Fourteenth

Amendment because force was used without proper authorization. Defendants are

the warden and correctional officers at Oklahoma State Penitentiary (“OSP”) in

McAlester, Oklahoma. Mr. Jackson seeks both compensatory and punitive

damages for alleged constitutional violations by Defendants during his

incarceration at OSP.

        Although Defendants moved for summary judgment, the district court

dismissed Mr. Jackson’s claims against Defendants in their individual capacities

sua sponte as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). It also held that, to

the extent that Mr. Jackson seeks damages against Defendants in their official

capacities, such claims are barred by the Eleventh Amendment. Mr. Jackson does

not appeal the latter ruling. However, he contends that the district court erred in

dismissing his claims pursuant to § 1915(e)(2)(B)(i) because (1) his factual

contentions were not baseless, nor did his legal theories indisputably lack merit;

(2) the court improperly relied on a Martinez report and other evidence submitted

by Defendants; and (3) genuine issues of material fact remain in dispute. He also

challenges the district court’s refusal to appoint counsel on his behalf. Our

jurisdiction arises under 28 U.S.C. § 1291, and we affirm in part and reverse in

part.


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                                    Background

      The undisputed facts are these: On May 31, 1995, Mr. Jackson was to be

reassigned to a different cell at OSP. He refused, and Defendant correctional

officers responded with force to move him to his new cell. At some point, Mr.

Jackson broke a food tray and wielded a piece of it at the guards. He was injured

in the altercation and subsequently filed § 1983 claims against Defendants.

      At the district court’s request, the Oklahoma Department of Corrections

(“DOC”) prepared a Martinez report and submitted it with Defendants’ answer.

Defendants then filed a motion for summary judgment, but the court dismissed

Mr. Jackson’s claims sua sponte under § 1915(e)(2)(B)(i). The court relied

heavily on the Martinez report in holding that Mr. Jackson’s claims were

frivolous. See R. doc. 38 at 3-4. Although it did not directly discuss Mr.

Jackson’s Due Process claim, it appears to have dismissed that claim as well on

the ground that it was “vague and conclusory.” 

                                     Discussion

      Appellate courts review the dismissal under § 1915(e)(2)(B)(i) for abuse of

discretion. See Harper v. Showers, No. 97-60822, 

, at *4 n.3

(5th Cir. May 24, 1999); McWilliams v. Colorado, 

, 574-75 (10th

Cir. 1997). To determine if a district court abused its discretion in dismissing an


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action as frivolous pursuant to § 1915(e)(2)(B)(i), we consider, inter alia, whether

the plaintiff is proceeding pro se and whether the district court inappropriately

resolved genuine issues of material fact. See Humphries v. Various Fed. USINS

Employees, 

, 940 (5th Cir. 1999). However, if the district court

relied on evidence outside the pleadings to resolve disputed issues of material

fact, as it did here, we treat the matter “as a dismissal under Fed. R. Civ. P. 56

and not as a dismissal under 28 U.S.C. § 1915(e)(2)(B).” Raymer v. Enright, 

, 174 n.1 (10th Cir. 1997); see also Hall v. Belmon, 

, 1109

(10th Cir. 1991) (“Although a court may consider the Martinez report in

dismissing a claim pursuant to § 1915(d) [now designated § 1915(e)], it cannot

resolve material disputed factual issues by accepting the report’s factual findings

when they are in conflict with pleadings or affidavits.” (citation omitted)).

      We review a grant of summary judgment de novo and consider the record in

the light most favorable to the nonmovant. See McKnight v. Kimberly Clark

Corp., 

, 1128 (10th Cir. 1998). Summary judgment is appropriate

only if there is no genuine issue of material fact and the moving party is entitled

to judgment as a matter of law. See Celotex Corp. v. Catrett, 

, 322

(1986). Because the district court in Mr. Jackson’s case ignored genuine issues of

material fact, as discussed below, dismissal was inappropriate under either Rule

56(c) or § 1915(e)(2)(B)(i). See 

for summary


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judgment); 

(discussing abuse of discretion standard

for § 1915(e)(2)(B)(i) dismissals); Moore v. Holbrook, 

, 701 (6th Cir.

1993) (although court used correct legal analysis, summary judgment improper

where decision is based upon disputed facts).

      The district court held that Defendants used force against Mr. Jackson in

good faith to maintain order or restore discipline, rather than sadistically or

maliciously, and therefore did not violate his Eighth Amendment rights. See

Whitley v. Albers, 

, 321 (1986). In making this determination, the

court appears to have improperly relied on the Martinez report prepared by the

DOC, which conflicted with evidence that Mr. Jackson presented. See R. doc. 38

at 3-4; 

; El’ Amin v. Pearce, 

, 832 (10th Cir.

1984). Because Mr. Jackson’s complaint alleged facts based on his personal

knowledge and was sworn under penalty of perjury, it can be considered an

affidavit controverting the Martinez report. See 

.

      Defendants contend that they were ordered to move Mr. Jackson to a new

cell and that, when they opened the door, he made a food tray into a weapon and

threatened them with it. See R. doc. 30 at 2-3. In contrast, Mr. Jackson argues

that he only wielded the broken tray after the guards approached him in a

menacing manner and that it did not constitute a lethal weapon. See R. doc. 35 at

2-3. He also alleges that he is African-American; that the officers who forcibly


                                         -5-
moved him to a new cell are Caucasian; and that they brutally beat him. See R.

doc. 2 (attachment A). Careful review of the record convinces us that other

material facts remain in dispute, including but not limited to whether the officers

kicked, hit, and poked Mr. Jackson and engaged in other violence toward him.

Such disputed facts are material to determining if the officers used force in good

faith to preserve prison discipline and security, see 

,

325, and thus if their conduct warrants deference. See 

      Because Mr. Jackson has presented some evidence, including signed

statements from other inmates, that the guards approached him in a threatening

way, assaulted him and continued to kick him when he lay on the floor unarmed,

see R. doc. 35 (attachments), a jury could find the guards’ use of force to be an

“unnecessary and wanton infliction of pain.” 

. Because

the essential inquiry at the summary judgment stage is whether a reasonable jury

could return a verdict for the nonmovant on the evidence presented, see Anderson

v. Liberty Lobby, Inc., 

, 250 (1986), the district court erred in

dismissing Mr. Jackson’s Eighth Amendment claim under § 1983.

      The court also seems to have relied on medical records indicating that Mr.

Jackson’s injuries were not severe when it determined that his complaint lacked

an arguable basis in law or fact. See R. doc 38 at 3 (noting minor bruising to eye

area and superficial lacerations). In contrast, Mr. Jackson asserts, the blows


                                         -6-
inflicted upon him damaged his eye and caused him to bleed from his nose and

mouth. See R. doc. 2 (attachment A); R. doc. 35 at 4. According to the Supreme

Court, the extent of injury is but one relevant factor, and an insignificant injury

does not end the Eighth Amendment inquiry. See Hudson v. McMillian, 

, 2 (1992). Thus, even if Mr. Jackson failed to present sufficient evidence of

serious bodily harm, the district court erred in holding that his Eighth Amendment

claim was foreclosed.

      With regard to the Fourteenth Amendment claim, “[a] state cannot be said

to have a federal due process obligation to follow all of its procedures; such a

system would result in the constitutionalizing of every state rule, and would not

be administrable.” Levine v. Torvik, 

, 1515 (6th Cir. 1993). The

district court did not directly address this claim, but we conclude that Mr.

Jackson’s vague and general allegations, raised in his complaint and not

addressed in his summary judgment response, were insufficient to state a claim.

See 28 U.S.C. § 1915(e)(2)(B)(ii); 

. Although we construe

a pro se litigant’s pleadings liberally, “we do not believe it is the proper function

of the district court to assume the role of advocate for the pro se litigant.” 

. Thus, the district court properly dismissed Mr. Jackson’s

Fourteenth Amendment claim. Of course, he retains other protection from

arbitrary action, such as that afforded by the Eighth Amendment, see Sandin v.


                                          -7-
Conner, 

, 487 n.11 (1995), and because we reverse the dismissal of

his Eighth Amendment claim, he is not without legal recourse.

      Mr. Jackson also challenges the district court’s refusal to appoint counsel

on his behalf. “We review the denial of appointment of counsel in a civil case for

an abuse of discretion.” Rucks v. Boergermann, 

, 979 (10th Cir.

1995). After reviewing the record, we are convinced that Mr. Jackson

understands the fundamental issues in his case and can present his arguments

coherently and intelligently. See 

no abuse of discretion in denying

him appointed counsel.

      However, because the district court inappropriately resolved disputed issues

of material fact, relying on the Martinez report submitted by Defendants and

ignoring contrary evidence that Mr. Jackson presented, we REVERSE IN PART

and AFFIRM IN PART its dismissal of Mr. Jackson’s case and REMAND for

further proceedings consistent with this order and judgment.


                                      Entered for the Court


                                      Paul J. Kelly, Jr.
                                      Circuit Judge




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