concurring:
I concur in the court’s decision to remand this case for further proceedings. The magistrate judge acted too hastily in disposing of the factual disputes by means of a Spears hearing and dismissal on the pleadings. Nevertheless, I do not read this opinion to undermine our previous decisions, predicated on Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), which require proof of injury “albeit significant or insignificant” in order to recover from state actors for their use of unconstitutionally excessive force. Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (spraying of inmate with fire extinguisher caused no injury and was therefore a de minimis use of physical force not repugnant to the conscience of mankind).