Potts v. Hill

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-50214 Summary Calendar

JIMMY POTTS,

Plaintiff-Appellant, versus MARK A. HILL, Etc.; ET AL.,

Defendants,

JON L. FREEMAN, Field Rider, Correctional Officer 3, Hughes Unit,

Defendant-Appellee.

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Appeal from the United States District Court for the Western District of Texas USDC No. W-96-CV-449 ____________________________________________

May 25, 1999 Before DAVIS, DUHÉ and PARKER, Circuit Judges. PER CURIAM:*

Jimmy Potts, Texas inmate # 549145, appeals the district court’s summary-judgment dismissal of his civil rights complaint. Potts contends that Jon L. Freeman used unnecessary force against

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

him, causing him an injury to his mouth. Potts moves for appointment of counsel. The motion is DENIED.

We review “the grant of a summary judgment motion de novo, using the same criteria used by the district court." Fraire v. City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). To obtain a summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). If the moving party makes the required showing, the burden shifts to the nonmovant to set forth, with

competent summary-judgment evidence, specific facts showing the existence of a genuine issue for trial. See Fed. R. Civ. P. 56(e). When a prisoner alleges that a prison official used force in

violation of the Eighth Amendment, the core judicial inquiry 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, 6-7 (1992).

The district court, relying on Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), concluded that Potts did not have the kind of

injury that warranted Eighth Amendment protection. A successful Eighth Amendment excessive force claim requires that a prisoner

have suffered a more than de minimis physical injury from the excessive force. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999). However, the inquiry in a use-of-force claim does not end with an analysis of the injury that was suffered. See Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998)(“the absence of serious injury is quite relevant to an excessive force inquiry, but does not alone preclude relief.”)(citing Hudson, 503 U.S. at 7). The *3 core inquiry is "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson, 503 U.S. at 6-7. We have stated that it is arguable that “Siglar leaves open the possibility that a physical injury which is only de minimis may nevertheless suffice for purposes of the Eighth Amendment . . . if the force used is of the kind [that is] repugnant to the conscience of mankind.” Gomez, 163 F.3d at 924 n.4 (internal quotations omitted).

Potts’s verified medical records, attached to Freeman’s motion for summary judgment, document the “use of force,” which resulted in a nonbleeding cut on the inside of Potts’s lip. Although Potts’s pleadings are not a model of clarity, it appears that he complains that Freeman struck Potts’s mouth, making his mouth too sore to wear his dentures for three weeks. Further, Potts’s complaint establishes that the injury occurred during an altercation between Potts and Freeman for which Potts received a prison disciplinary conviction.

We agree that Freeman demonstrated that there is no genuine issue of material fact, based on the de minimis nature of the injury and the disciplinary action against Potts arising out of the incident. See Fed. R. Civ. P. 56(c). The burden then shifted to Potts to set forth, with competent summary-judgment evidence, specific facts showing the existence of a genuine issue for trial. Potts failed to meet his burden, even after the magistrate judge identified this deficiency in the report and

recommendation and the district court granted Potts an extension of time to file objections. We therefore affirm the district court’s grant of summary

judgment in favor of Freeman.

AFFIRMED; MOTION DENIED. 4