United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-40131
Summary Calendar
HAROLD V. DAVIS,
Plaintiff-Appellant,
versus
DOCTOR KEN KUYKENDALL; CURTIS LAWSON; DAVID DIXON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:04-CV-500
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Harold V. Davis, Texas prisoner # 1068730, alleged under
42 U.S.C. § 1983 a denial of adequate medical treatment and the
use of excessive force. He appeals the dismissal as frivolous of
the medical claim and the summary judgment on the excessive force
claims. Davis appeals the denial of his motions for appointment
of counsel. Davis’s motion for reconsideration of the Clerk’s
notification that no action would be taken on an emergency motion
for injunctive relief is denied.
*
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this opinion should not be published and is not precedent except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.
No. 06-40131
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Davis argues that Kuykendall violated his Eighth Amendment
rights because Kuykendall did not provide Davis a wheelchair,
although Davis alleged that he could not walk, and did not order
wheelchair transportation, which Davis alleged was necessary for
him to be examined by a specialist. We review for abuse of
discretion the dismissal of a claim as frivolous under 28 U.S.C.
§ 1915(e). Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998). A claim is frivolous if it lacks an arguable basis in law
or fact. Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).
To establish an Eighth Amendment claim for the denial of
adequate medical treatment, a prisoner must show that prison
officials acted with deliberate indifference to the prisoner’s
serious medical needs, constituting an unnecessary and wanton
infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297 (1991).
Unsuccessful medical treatment, acts of negligence, neglect, or
medical malpractice are insufficient to give rise to a § 1983
cause of action. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.
1991). A delay in medical care constitutes an Eighth Amendment
violation only if there has been “deliberate indifference, which
results in substantial harm.” Mendoza v. Lynaugh, 989 F.2d 191,
195 (5th Cir. 1993).
Kuykendall examined Davis, determining that a wheelchair was
not medically necessary, Davis’s muscle tone was good, and that
Davis did not have muscle atrophy in his legs. After Kuykendall
examined Davis’s medical records, he referred Davis to a
No. 06-40131
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specialist, provided Davis a wheelchair pass, and ordered the
transportation necessary to enable Davis to see a specialist.
Although Davis did not agree with Kuykendall’s evaluation of his
condition or the timeliness with which his concerns were
addressed, Davis’s allegations do not establish deliberate
indifference. See Mendoza, 989 F.2d at 195; Varnado, 920 F.2d
at 321. The dismissal of Davis’s claim against Kuykendall was
not an abuse of discretion. Ruiz, 160 F.3d at 275.
Davis’s excessive force claim against Sergeant David Dixon
involves an incident that occurred in December 2002. Davis
asserted that he was being escorted from his cell by guards,
including Dixon, with his hands cuffed behind his back. In
response to Davis refusing to continue walking, a guard jerked
Davis’s arm and when Davis jerked back, Dixon and another guard
brought Davis to his back on the floor. While holding Davis’s
head, the three guards hit Davis. When they ceased, the officers
dropped Davis’s head to the floor and Dixon kicked Davis in the
ear. A medical examination showed that Davis had contusions on
his left check and the bridge of his nose, pin-sized lacerations
to his right cheek and the right side of his neck, and that his
right ear was bruised, purple, and swollen.
The second alleged excessive force incident occurred in
April 2003. Davis had tied his cell door shut so that no one
could enter his cell due to his alleged inability to walk. When
Lawson managed to open the cell door, Davis, who was sitting on
No. 06-40131
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the floor, squirted Lawson in the face and chest with an unknown
substance. According to Davis, Lawson closed the cell door after
being squirted, then opened the door and kicked Davis, sending
Davis across his cell. Davis asserts that Lawson stomped on
Davis’s upper back, neck, and head until Davis’s head began to
bleed. An examination of Davis showed that he suffered bruising
and lacerations to his forehead that required the application of
steristrip bandages and that he suffered bruising to his lower
back and the area between his shoulder blades.
The district court granted summary judgment in favor of
Dixon and Lawson, holding that the injuries Davis sustained were
de minimis and that Dixon and Lawson had used de minimis force.
We review de novo the district court’s grant of summary judgment.
Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999). Summary
judgment is appropriate if the evidence shows that “there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV.
P. 56(c). We view the evidence in the light most favorable to
the nonmoving party. Jenkins v. Cleco Power LLC, F.3d , No.
05-30744, 2007 WL 1454363 at *3 (5th Cir. May 18, 2007).
In determining whether a claim of excessive force amounts to
an Eighth Amendment violation we examine the extent of the
injury; the need for the applied force; the relationship between
the need and the force used; the threat reasonably perceived by
officials; and efforts made to temper the severity of a forceful
No. 06-40131
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response. Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).
The physical injury suffered must be more than de minimis but
need not be significant. Id. at 924. The 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 v. McMillian, 503 U.S. 1, 6-7 (1992).
The evidence, construed in the light most favorable to
Davis, reveals material issues of fact concerning whether the
injuries suffered as a result of each incident were de minimis.
See Brown v. Lippard, 472 F.3d 384, 387 (5th Cir. 2006); Gomez,
163 F.3d at 924-25. Additionally, material issues of fact exist
regarding whether Dixon kicked Davis in the ear or otherwise
injured him and, if so, whether this was done maliciously or in a
good faith effort to restore discipline. Material issues of fact
also exist regarding whether Lawson, who admitted kicking Davis
in the face, did so in immediate response to being sprayed with
the unknown substance and whether the amount of force used was
reasonable in light of the threat he perceived, or whether,
Lawson exited the cell, then returned, and struck Davis. Given
the existence of material issues of fact, we vacate the district
court’s summary judgment in favor of Dixon and Lawson.
Davis challenges the district court’s determination that the
claims of imminent danger raised in a post judgment motion were
unrelated to this action. The district court did not abuse its
discretion in denying the motion for relief from judgment. See
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Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 997
(5th Cir. 2001). We do not address Davis’s arguments regarding
the failure to protect him from harm and incidents that occurred
on December 19, 2002, and January 16, 2007. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999). The
district court did not abuse its discretion in denying Davis’s
motions for appointment of counsel. See Cupit v. Jones, 835 F.2d
82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 212
(5th Cir. 1982).
JUDGMENT AFFIRMED IN PART; SUMMARY JUDGMENT ON EXCESSIVE
FORCE CLAIMS VACATED AND CASE REMANDED FOR FURTHER
PROCEEDINGS; MOTION FOR RECONSIDERATION DENIED.