United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 29, 2003
Charles R. Fulbruge III
Clerk
No. 02-21037
Summary Calendar
MATTHEW WATSON,
Plaintiff-Appellant,
versus
GARY JOHNSON; JOSHUA MILES; BRENDA CHANEY,
Defendants-Appellees.
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Appeals from the United States District Court
for the Southern District of Texas
(H-02-CV-67 )
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Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Matthew Watson, Texas prisoner # 522991,
appeals the dismissal as frivolous of his 42 U.S.C. § 1983 lawsuit.
He renews his claim that prison guard Joshua Miles used excessive
force against him, and that Director Gary Johnson and Head Warden
Brenda Chaney are liable for Miles’s conduct. We review the
dismissal of Watson’s 42 U.S.C. § 1983 complaint for an abuse of
discretion. See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
*
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this opinion should not be published and is not precedent except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.
“[W]henever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishment
Clause, 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). Five nonexclusive factors are
considered in determining whether an excessive force claim has been
established: “1. the extent of the injury suffered; 2. the need
for the application of force; 3. the relationship between the need
and the amount of force used; 4. the threat reasonably perceived by
the responsible officials; and 5. any efforts made to temper the
severity of a forceful response.” Hudson v. McMillian, 962 F.2d
522, 523 (5th Cir. 1992).
Viewing the events recited by Watson against these factors, it
cannot be said that the district court abused its discretion in
dismissing Watson’s complaint. See id.; Berry, 192 F.3d at 507.
Because Watson’s claims against the prison director and warden
similarly fail, the district court’s judgment is AFFIRMED. See
Stewart v. Murphy, 174 F.3d 530, 536 (5th Cir. 1999).
The district court’s dismissal of Watson’s complaint counts as
a “strike” for purposes of 28 U.S.C. § 1915(g). See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Watson is CAUTIONED
that if he accumulates three strikes, he will be barred from
proceeding in forma pauperis in any civil action or appeal filed
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while he is incarcerated or detained in any facility unless he is
under imminent danger of serious physical injury. See 28 U.S.C. §
1915(g).
AFFIRMED; THREE-STRIKES WARNING ISSUED.
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