973 F.

2d 1518
23 Fed.R.Serv.3d 934
Craig Bryant NORTHINGTON, Plaintiff-Appellant,
v.
Carlos JACKSON, Captain; Captain Rowe; Captain Brennis;
Sergeant Motley; Dee Badley, Deputy Sheriff; Deputy Marin,
Sheriff, and Deputy Sheriffs John Doe # 1, John Doe # 2, of
Denver County Sheriff's Department; Denver County Sheriff's
Department, Defendants-Appellees.

No. 92-1068.
United States Court of Appeals,
Tenth Circuit.
Aug. 17, 1992.

Craig Bryant Northington, pro se.

Theodore S. Halaby, Joseph M. Timmins of Halaby, McCrea & Cross,
Denver, Colo., for defendants-appellees, and Louis B. Bruno of Bruno,
Bruno & Colin, P.C., Denver, Colo., co-counsel for defendant-appellee
Captain Carlos Jackson.
Before SEYMOUR, ANDERSON and BALDOCK, Circuit Judges.*
BALDOCK, Circuit Judge.

Plaintiff Craig Bryant Northington appeals from the dismissal of his 42 U.S.C.
1983 and 1985 civil rights actions against various Denver sheriff's deputies,
corrections officers and the Denver Sheriff's Department. All of the allegations
regard misdeeds which occurred when Mr. Northington was awaiting transfer
from the Denver County Jail to the Denver County Community Corrections
facility while he was serving his community corrections placement sentence. In
his pro se complaint, Mr. Northington alleged: (1) that defendant Deputy
Sheriff Dee Badley violated his constitutional rights when she sold him a
pickup truck in violation of his community corrections placement sentence and
later threatened to bring charges against him for forging a notarization on the
pickup title; (2) that defendants Captain Carlos Jackson and Sergeant Motley

violated his due process rights and subjected him to cruel and unusual
punishment by stopping him on his way from the Denver County Jail to his
community placement worksite, holding a handgun to his head, hauling him
back to the Denver County jail and forcing him to telephone Deputy Badley and
implicate her in illegal activities at the jail; and (3) that the remaining
defendants engaged in a civil conspiracy and subjected him to cruel and unusual
punishment by telling prisoners that he was a "snitch" and repeatedly moving
him from cell to cell in the jail to substantiate the rumor. The defendants moved
to dismiss the complaint under Fed.R.Civ.P. 12(b)(6), and the district court
referred the matter to a magistrate who held a telephonic evidentiary hearing
and recommended dismissal. The district court subsequently adopted the
magistrate's findings and recommendations over Mr. Northington's objection
and dismissed the complaint under Rule 12(b)(6). Exercising de novo review,
see Miller v. Glanz, 948 F.2d 1562 (10th Cir.1991), we affirm the dismissal of
the 1983 claims against The Denver Sheriff's Department, Deputy Badley,
Captain Rowe and Captain Brennis as well as all of the 1985 civil rights
conspiracy claims; however, we reverse the dismissal of the 1983 claims
against Captain Jackson, Sergeant Motley and Deputy Marin, and remand for
proceedings consistent herewith.
I. Pro Se Prisoner Complaints
2

As we recently expounded in Hall v. Bellmon, 935 F.2d 1106, 1108-11 (10th

Cir.1991), there are three common pretrial points at which a district court may
dispose of a pro se complaint such as Mr. Northington's. First, the court may
dismiss the complaint as patently "frivolous or malicious" under 28 U.S.C.
1915(d). Id. at 1108-09. See Neitzke v. Williams, 490 U.S. 319, 109 S.Ct.
1827, 104 L.Ed.2d 338 (1989). A claim is "frivolous" or "malicious" if it "is
based on an "indisputably meritless legal theory." Neitzke, 490 U.S. at 327, 109
S.Ct. at 1833. The 1915(d) "frivolous" or "malicious" standard allows the
district court to "pierce the veil of the complaint's factual allegations and
dismiss those claims whose factual contentions are clearly baseless." Id.
"Clearly baseless factual allegations are those that are 'fantastic' or 'delusional.'
" Hall, 935 F.2d at 1109 (quoting Neitzke, 490 U.S. at 327-28, 109 S.Ct. at
1833). In making this determination, the district court is to weigh the
allegations in favor of the in forma pauperis plaintiff. Denton v. Hernandez, --U.S. ----, ----, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992). And we review
for an abuse of discretion. Id. at ----, 112 S.Ct. at 1734.1

Second, a district court may dismiss a pro se complaint under Rule 12(b)(6) for
failure to state a claim. Under this rule, the complaint should not be dismissed "
'unless it appears beyond doubt that the plaintiff can prove no set of facts in

support of his claim which would entitle him to relief.' " Id. (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). The district
court must construe a pro se plaintiff's complaint liberally under this standard.
Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652
(1972). Nevertheless, the court should not assume the role of advocate, and
should dismiss claims which are supported only by vague and conclusory
allegations. Hall, 935 F.2d at 1110.
4

Third, the district court may grant summary judgment under Fed.R.Civ.P. 56(c)
"if the pleadings, depositions, answers to interrogatories, and admissions on
affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to judgment as a matter of law." Id. If the
district court considers matters outside the pleadings, a 12(b)(6) motion should
be treated as a motion for summary judgment, and the opposing party must be
given "the notice and an opportunity to respond as provided in Rule 56." Hall,
935 F.2d at 1110-11. The Rule 56(c) provisions for notice and an opportunity
to respond with affidavits are mandatory, and " '[n]oncompliance therewith
deprives the court of authority to grant summary judgment.' " Id. (quoting
Torres v. First State Bank of Sierra County, 550 F.2d 1255, 1257 (10th
Cir.1977)).

In this circuit we allow a court authorized report and investigation by prison

officials to determine whether a pro se prisoner's allegations have any factual or
legal basis. These reports are referred to as Martinez reports. See id. at 1109
(citing Martinez v. Aaron, 570 F.2d 317, 318-19 (10th Cir.1978)). And
telephonic evidentiary hearings, such the hearings conducted by the magistrate
in this case, may serve the same purpose. Id. (citing Gee v. Estes, 829 F.2d
1005, 1007 (10th Cir.1987)). On summary judgment, a Martinez report is
treated like an affidavit, and the court is not authorized to accept its fact
findings if the prisoner has presented conflicting evidence. Id. at 1111. This
process is designed to aid the court in fleshing out possible legal bases of relief
from unartfully drawn pro se prisoner complaints, not to resolve material factual
issues. Id. at 1109 (citing El'Amin v. Pearce, 750 F.2d 829, 832 (10th
Cir.1984); Sampley v. Ruettgers, 704 F.2d 491, 493 n. 3 (10th Cir.1983)).

II. Disposition
6

We have reviewed the record and have construed Mr. Northington's complaint
liberally as required by Haines, 404 U.S. at 520-21, 92 S.Ct. at 595-96, and we
are not troubled with the district court's dismissal of the 42 U.S.C. 1983
claims against the Denver Sheriff's Department, Deputy Badley, and Captains
Rowe and Brennis, nor are we troubled with the dismissal of the 1985

conspiracy counts. The claim for damages against the Department is based on
an "indisputably meritless legal theory," Neitzke, 490 U.S. at 327, 109 S.Ct. at
1833, because the Department is entitled to Eleventh Amendment Immunity.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105
L.Ed.2d 45 (1989). Dismissal therefore would be proper under 28 U.S.C.
1915(d). See McKinney v. Oklahoma, 925 F.2d 363, 365-66 (10th Cir.1991).
7

Regarding Deputy Badley, Mr. Northington alleges that her sale of the pickup
truck and the ensuing forgery threats caused him to lose his community
corrections status and therefore violated his equal protection and due process
rights. It is clear from the face of the complaint, however, that he lost his
community corrections status because he left his worksite, travelled to Utah and
committed two armed robberies. He is now serving an habitual offender life
sentence in the Colorado State Penitentiary as a result of the escape conviction
stemming from this incident. Mr. Northington has not alleged any plausible
constitutional violation by Deputy Badley in relation to this incident. Dismissal
under Rule 12(b)(6) therefore was proper. See Conley v. Gibson, 355 U.S. at
45-46, 78 S.Ct. at 101-02.

Regarding Captains Rowe and Brennis, Jail Supervisors, Mr. Northington has
not alleged personal involvement in anything other than the 1985 conspiracy
claims, and we find nothing but vague and conclusory allegations in support of
such claims. We therefore hold that dismissal of the 1985 claims against the
supervisors and all of the 1985 claims was proper under Rule 12(b)(6). See
Hall, 935 F.2d at 1110.

Our trouble with this case begins with the district court's treatment of Mr.
Northington's claims against Captain Jackson and Sergeant Motley. The
complaint and the testimony at the evidentiary hearing reveal the following
factual scenario. Captain Jackson served as an internal investigator for the
Corrections Department, and he suspected that Deputy Badley was fraternizing
with Mr. Northington. He therefore surveilled Mr. Northington as he left the
Jail each morning and travelled to his community placement worksite.
According to Captain Jackson's testimony, he stopped Mr. Northington one
morning because Mr. Northington was not headed toward his worksite on the
"south side" of the Denver metropolitan area. Captain Jackson further testified
that he drew his service revolver as a standard procedure and, together with
Sergeant Motley who arrived soon thereafter, transported Mr. Northington back
to the jail and had him telephone Deputy Badley. Mr. Northington's complaint
contains a different story, however. He alleges that he left the Jail and stopped
to make a telephone call to find out the location of his worksite. At this point he
alleges that Captain Jackson, wearing street clothes, surprised him, put a

revolver to his head without identifying himself as a corrections officer,

threatened to kill him, and together with Sergeant Motley transported him back
to the Jail and coerced him both verbally and physically into telephoning
Deputy Badley and entrapping her. Given this information, the district court
adopted the magistrate's finding that "Captain Jackson did not commit assault
and battery on Plaintiff [and that] Plaintiff was pulled over because he was not
in the vicinity of his assigned work duty," I R. doc. 50, and dismissed the
complaint.
10

As we have already stated, a complaint may not be dismissed pursuant to Rule

12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." See Conley, 355
U.S. at 45-46, 78 S.Ct. at 102. The court is to accept all allegations as true and
make a legal determination regarding whether the allegations state a claim. In
this case the district court did not consider any potential legal issues which arise
from Mr. Northington's allegations. Instead, it foreclosed legal analysis by
concluding that the allegations were false, and it based this determination on
Captain Jackson's testimony at the telephonic evidentiary hearing. Were the
allegations in the complaint "fantastic or delusional," the court could properly
have foreclosed legal analysis pursuant to its power under 1915(d) to dismiss
clearly baseless pro se complaints; however, the allegations are not "fantastic,"
nor are they "delusional."2 It was error for the court to pierce the veil of the
complaint and dismiss plausible allegations as untruthful under Rule 12(b)(6).
See Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832 ("What Rule 12(b)(6) does not
countenance are dismissals based on a judge's disbelief of a complaint's factual
allegations."). Moreover, it was error for the court to base its determination on
the telephonic hearing testimony without complying with Rule 56 summary
judgment procedures regarding notice and opportunity to respond. See Hall,
935 F.2d at 1108-09. See also Miller, 948 F.2d at 1566 (the court should notify
the parties that it is converting a Rule 12(b)(6) motion to dismiss to a Rule 56
summary judgment motion and allow the nonmovant ten days to accumulate
evidence demonstrating material factual issues). Rule 56 summary judgment
would lie if Mr. Northington were unable to place material facts in issue, see
Hall, 935 F.2d at 1108-09, but he has not had adequate opportunity to do so.

11

Although the district court failed to do a legal analysis of Mr. Northington's

complaint and considered matters outside the pleadings, we still must exercise
de novo review and determine whether the complaint states a valid claim for
relief. See Miller, 948 F.2d at 1566 ("court's error in failing to convert the
motion and to comply with Rule 56 is harmless if dismissal can be justified
under Rule 12(b)(6) standards without reference to matters outside of plaintiff's
complaint"). To state a valid claim under 1983 a plaintiff must allege that the

defendants acted under color of state law to deprive him of a constitutional

right. Ruark v. Solano, 928 F.2d 947, 949 (10th Cir.1991). We first must
determine which constitutional right is alleged to have been infringed and then
judge the validity of the claim "by reference to the specific standard which
governs that right...." Graham v. Connor, 490 U.S. 386, 394, 109 S.Ct. 1865,
1870, 104 L.Ed.2d 443 (1989).
12

As is expected from a pro se plaintiff, Mr. Northington has not alleged

constitutional violations with precision. Instead he refers generally to
substantive due process and the Eighth Amendment prohibition against cruel
and unusual punishment. His factual allegations, however, boil down to a claim
that Captain Jackson and Sergeant Motley arbitrarily abused him by threatening
to kill him and physically abusing him. Mr. Northington does not specify in his
complaint exactly what type of physical abuse the corrections officers allegedly
inflicted on him at the Jail; however, he does allege that Captain Jackson put a
service revolver to his head and threatened to shoot when Captain Jackson and
Sergeant Motley apprehended him on the street. We think this amounts to a
claim that Captain Jackson with Sergeant Motley's assistance used excessive
force, and excessive force claims brought by convicted prisoners fall under the
rubric of the Eighth Amendment's prohibition against cruel and unusual
punishment as applied to the states through the Fourteenth Amendment. See id.
at 395 n. 10, 109 S.Ct. at 1871 n. 10 (wherein the Supreme Court stated that "
[a]ny protection that 'substantive due process' affords convicted prisoners
against excessive force is, we have held, at best redundant of that provided by
the Eighth Amendment") (citing Whitley v. Albers, 475 U.S. 312, 327, 106
S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986)).

13

The Supreme Court recently defined the inquiry for Eighth Amendment
excessive force claims by convicted prisoners:

14
whenever
prison officials stand accused of using excessive physical force in
violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is
that set out in Whitley [v. Albers, 475 U.S. 312, 106 S.Ct. 1078]: whether force was
applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.
15

Hudson v. McMillian, --- U.S. ----, ----, 112 S.Ct. 995, 999, 117 L.Ed.2d 156
(1992). The "malicious and sadistic" requirement applies regardless of whether
the corrections officers are quelling a prison disturbance or merely trying to
maintain order. Id.3 Moreover, the standard applies regardless of whether the
plaintiff has alleged significant physical injury, for the ultimate constitutional
inquiry is directed at whether an " 'unnecessary and wanton infliction of pain' "

has occurred. Id. at ----, 112 S.Ct. at 998-999 (quoting Whitley v. Albers, 475
U.S. at 319, 106 S.Ct. at 1084). The extent of injury may be relevant in
determining whether corrections officers unnecessarily and wantonly inflicted
pain; however, its absence does not end the inquiry. Id. --- U.S. at ----, 112 S.Ct.
at 999. The court should also consider "the relationship between [the need for
application of force] and the amount of force used, the threat 'reasonably
perceived by the responsible officials,' and 'any efforts made to temper the
severity of a forceful response.' " Id. (quoting Whitley, 475 U.S. at 321, 106
S.Ct. at 1085).
16

De minimis applications of force are necessarily excluded from the cruel and
unusual punishment inquiry. Id. --- U.S. at ----, 112 S.Ct. at 1000 (citing
Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.), cert. denied sub nom. John v.
Johnson, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), wherein Judge
Friendly wrote that "[n]ot every push or shove, even if it may later seem
unnecessary in the peace of a judge's chambers, violates a prisoner's
constitutional rights"). So are verbal threats and harassment. We recognized
this in Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) when we held that
a sheriff's idle threat to hang a prisoner did not give rise to a 1983 claim.
Courts nevertheless have recognized that convicted prisoners have a
constitutional "right to be free from the terror of instant and unexpected death"
at the hands of their keepers. Burton v. Livingston, 791 F.2d 97, 100 (8th
Cir.1986) (allegation that guard drew weapon, made racial epithets and
threatened to shoot black prisoner in the back to prevent him from exercising
free speech stated 1983 claim for violation of First Amendment, Due Process
and Equal Protection rights). See also Douglas v. Marino, 684 F.Supp. 395
(D.N.J.1988) (allegation that prison employee wielded kitchen knife and
threatened to stab prisoner stated a 1983 claim for violation of prisoner's
liberty interest in personal security even though the threat was not intended to
prevent prisoner from exercising constitutional rights).

17

The alleged terror in the Burton and Douglas cases was brought on by the
brandishing of a lethal weapons, as Mr. Northington alleges in his complaint,
not an idle and laughing threat as complained of in Collins. Justice Blackmun in
his Hudson concurrence elaborated on the majority's rejection of a "significant
injury" requirement for Eighth Amendment excessive force claims. He cited an
incident of a "guard placing a revolver in an inmate's mouth and threatening to
blow [the] prisoner's head off" as an unnecessary and wanton infliction of pain,
albeit psychological pain rather than physical pain. --- U.S. at ----, 112 S.Ct. at
1004 (Blackmun, J., concurring) (citing Wisniewski v. Kennard, 901 F.2d
1276, 1277 (5th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 309, 112 L.Ed.2d 262
(1990)). Justice Blackmun's example is what we have in this case, and we agree

with him that such behavior is not per se de minimis and that the ensuing
psychological injury may constitute pain under the Eighth Amendment
excessive force standard. The Hudson majority's unequivocal rejection of a
"significant injury" requirement for Eighth Amendment Excessive force claims
militates in favor of this result. See id. (Blackmun, J., concurring) ("I do not
read anything in the Court's opinion to limit injury cognizable under the Eighth
Amendment to physical injury.... I have no doubt that to read a 'physical pain' or
'physical injury' requirement into the Eighth Amendment would be no less
pernicious and without foundation than the 'significant injury' requirement we
reject today.").
18

Mr. Northington has alleged psychological injury as a result of the alleged

death threat. Furthermore, he has alleged that he was abiding by the community
placement regulations and was on his way to his worksite when Captain
Jackson and Sergeant Motley surprised and threatened to kill him. Under these
circumstances, if true, it could be "malicious and sadistic" for a corrections
officer to place a revolver to a prisoner's head and threaten to pull the trigger.
Such a show of force might be reasonable and perhaps necessary if the prisoner
were on escape status, but the district court's fact finding to this effect was
impermissible on a 12(b)(6) motion. Accepting Mr. Northington's allegations as
true, we cannot at this point say that he will not be able to prove that Captain
Jackson and Sergeant Motley acted unnecessarily and wantonly for the very
purpose of causing him harm in violation of the Eighth Amendment. We
therefore reverse the judgment of the district court on this point.

19

Unfortunately our trouble with this case does not end with the excessive force
claim. The district court dealt with Mr. Northington's claim against Deputy
Marin in the same manner as his excessive force claim; that is, the court found
his allegations untruthful. Mr. Northington alleges that Deputy Marin, a guard
at the Jail, was overheard telling inmates that Mr. Northington was a "snitch."
As a result of this "snitch jacket," Mr. Northington alleges that he was severely
beaten on two occasions by groups of inmates and that his Eighth Amendment
rights therefore were violated. The magistrate found that none of this happened,
basing his finding on testimony at the telephonic hearing. And the district court
dismissed the claim pursuant to Rule 12(b)(6).

20

As with the excessive force claim it was error for the district court to dispose of
this claim pursuant to Rule 12(b)(6), but we must again determine whether the
allegations state a claim. We have held that the failure to protect inmates from
attacks by other inmates may rise to an Eighth Amendment violation if the
prison officials conduct amounts to an obdurate and wanton disregard for the
inmate's safety. Blankenship v. Meachum, 840 F.2d 741, 742 (10th Cir.1988)

(citing Meriwether v. Faulkner, 821 F.2d 408, 417 (7th Cir.), cert. denied, 484
U.S. 935, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987)). See also McGill v.
Duckworth, 944 F.2d 344, 347 (7th Cir.1991), cert. denied, --- U.S. ----, 112
S.Ct. 1265, 117 L.Ed.2d 493 (1992); Ayala Serrano v. Lebron Gonzalez, 909
F.2d 8, 14 (1st Cir.1990). In this case we have more than an allegation of
obdurate or wanton disregard for Mr. Northington's safety; we have an
allegation that Deputy Marin intended to do harm to Mr. Northington by
inciting inmates to beat him. When an inmate is able to prove such intent, it is
as if the guard himself inflicted the beating as punishment. See McGill, 944
F.2d at 347 ("If prison officials [assigned plaintiff] so that a bigger inmate
would have a better chance to rape him, then it is as if the officials inflicted that
pain and humiliation themselves."). Mr. Northington's allegations, accepted as
true, may state a violation of the Eighth Amendment.4 We therefore reverse the
district court's dismissal of this claim.
21

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause therefore
is ordered submitted without oral argument

We are exercising de novo review in this case because the district court
dismissed under Rule 12(b)(6). See supra

Although neither the magistrate nor the district court mentioned 1915(d) as
the basis for the dismissal, both cited Mr. Northington's "delusional" behavior
during the telephonic hearing as a basis for dismissing the complaint; the
transcript reveals that Mr. Northington attempted to communicate with the
ghost of his dead business partner. Mr. Northington may very well be unstable,
but this does not mean that he is incapable of alleging facts which would merit
legal relief. In interpreting which claims can be dismissed as "clearly baseless"
under 1915(d), the Neitzke Court referred to a "fantastic or delusional
scenario," not a "fantastic or delusional" person. Neitzke, 490 U.S. at 328, 109
S.Ct. at 1833

Hudson negates the dicta in Miller, 948 F.2d at 1567, where we stated that the
Wilson v. Seiter, --- U.S. ----, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)
deliberate indifference standard for Eighth Amendment conditions of
confinement cases applies as well to nonemergency excessive force claims

Moreover, the allegations may state a claim under a substantive due process
analysis. See Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668, 88 L.Ed.2d
677 (1986) (holding that mere neglect for prisoner's safety does not amount to a
substantive due process violation, implying that intent to do harm would be an
abuse of government power and amount to a substantive due process violation).
See also McGill, 944 F.2d at 347-49 (discussing Davidson and the required
mental state of prison officials in prisoner assault cases)