IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-20311
Summary Calendar
DONALD RAY HOWARD,
Plaintiff-Appellant,
versus
S.F. KENNEDY; BOBBY RIGGS; TRACY SCHULTZ,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(H-95-CV-3680)
March 19, 1999
Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.*
PER CURIAM:
Donald Ray Howard appeals the summary judgment in favor of the
defendants in his civil rights action filed and adjudicated
pursuant to 42 U.S.C. § 1983. Howard argues that the evidence was
sufficient to show that his injuries were more than de minimis and
that as a result a genuine issue of material fact existed regarding
*
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opinion should not be published and is not precedent except under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.
whether the assault against him by Kennedy resulted in excessive
force. Howard also appeals various other rulings by the district
court and his failure to receive a jury trial.
The district court did not err in dismissing Riggs and Schultz
from the suit. These individuals were sued only in their
supervisory capacities, but Howard did not allege that they acted
personally in his assault or that a Brazos County Jail policy
caused or failed to prevent his assault. See Baker v. Putnal, 75
F.3d 190, 199 (5th Cir. 1996). Because Howard has plainly failed
to even allege a cause of action against these defendants,
dismissal on summary judgment is proper.
The district court did err, however, in dismissing Howard’s
cause of action against Kennedy on the basis that Howard’s injuries
following the assault were de minimis and therefore could not have
been caused by sadistic or wanton acts. De minimis uses of
physical force are excluded from constitutional recognition under
the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9-10
(1992). The actions giving rise to Howard’s injuries and the
injuries themselves, however, are very similar to those in Gomez v.
Chandler, 163 F.3d 921, 922-25 and n.5 (5th Cir. 1999). In
Gomez—handed down after the district court’s decision here—the
prisoner alleged that he had done nothing to provoke the attack
against him and the district court declined to resolve the parties’
factual disputes. Id. Likewise, Howard and Kennedy have set forth
widely varying accounts with respect to Howard’s provocation of the
attack, and the district court did not resolve the factual dispute.
2
Under Howard’s version of the events, which the district court
implicitly accepted, we cannot say that Howard’s injuries are as a
matter of law de minimis in light of an unprovoked assault by a
police officer.1
As for the other claims raised by Howard, none have merit.
The district court did not abuse its discretion in limiting
discovery in the early stages of the case, pending a motion for
summary judgment by the defendants. See Gaines v. Davis, 928 F.2d
705, 707 (5th Cir. 1991) (immune defendant has the right to be free
of burdens of broad-reaching discovery). Howard was not denied his
right to a trial by jury because he did not request such a trial
and thereby waived it. See Fed. R. Civ. P. 38(b), 38(d). Finally,
the district court did not err in denying Howard’s request for a
default judgment which was filed after the defendants had filed an
1
In his sworn complaint and in his sworn summary judgment
response, Howard asserted in substance the following. He was
walking back to his cell from the multi-purpose room when Kennedy
hit him in the back of the neck and head, knocking him to the
ground. While Howard was on the ground half-dazed, Kennedy hit him
again in the forehead, knocking his head against the concrete and
rendering him unconscious. By the time Howard recovered, he was
handcuffed and being picked up from the floor. He did nothing to
provoke Kennedy’s attack. He suffered a bump on the forehead that
would not go away, a stiff neck that “comes and goes,” and
headaches.
Because the district court dismissed the excessive force claim
on the basis that, even accepting Howard’s version of the events,
no sufficient injury was shown, it did not address Kennedy’s
qualified immunity defense. We rule only on the sufficiency of
injury issue on the basis of Howard’s version of the events as
noted above. Any other issues respecting the excessive force claim
against Kennedy we leave for the district court to address in the
first instance. We do note that if Howard’s version of the events
in question is accepted, Kennedy is not likely to be entitled to
qualified immunity. See Spann v. Rainey, 987 F.2d 1110, 1114 (5th
Cir. 1993).
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answer. See McCorstin v. United States Dep’t of Labor, 630 F.2d
242, 244 (5th Cir. 1980). Because Howard does not challenge on
appeal the dismissal of his inadequate medical care claim, any
complaint in that respect is waived and the dismissal of that claim
is affirmed.
The dismissal of all Howard’s claims, save only his excessive
force claim against Kennedy, is AFFIRMED. The dismissal of the
excessive force claim against Kennedy is VACATED and that claim is
remanded for further proceedings not inconsistent herewith.
AFFIRMED in part, VACATED and REMANDED in part
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