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.
____________________________________________
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that this opinion should not be published and is not precedent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.
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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
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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.
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