IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50739
Summary Calendar
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LEON ANTHONY BENJAMIN,
Plaintiff-Appellant,
VERSUS
RICHARD HARVEY, et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(95-CR-20036)
_________________________
July 11, 1996
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Leon Benjamin appeals an adverse summary judgment in his
prisoner’s civil rights suit filed pursuant to 42 U.S.C. § 1983.
We affirm in part and vacate and remand in part.
I.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published except under the limited circumstances set forth
in 5TH CIR. R. 47.5.4.
At the time he filed suit in March 1994, Benjamin was a Texas
state prisoner confined at the Hughes Unit in Gatesville, Texas.
He filed a verified civil rights complaint against correctional
officers Richard Harvey, Kirk Perkins, and Michael Busby; Sergeant
Raymond Leonard; and nurses Cynthia Hester and C.C. Young.
Benjamin asserted that the officers had retaliated against him,
inflicted cruel and unusual punishment, failed to protect him,
conspired to violate his civil rights, and used excessive force;
and the nurses deprived him of medical care following the use of
force in violation of the U.S. Constitution and the laws of Texas.
Benjamin alleged specifically that Perkins made verbal threats
to harm him physically because Benjamin had filed grievances
against Perkins and other officers. Benjamin asked to see a
supervisor to report the verbal abuse and threats, and Leonard
responded. Leonard asked Benjamin why he had thrown urine on
Perkins, and Benjamin stated that Perkins was lying if he said that
Benjamin had thrown anything. Leonard called upon Harvey, Busby,
and Bell to search Benjamin's cell and to remove all containers and
personal property. Benjamin prepared a complaint to the unit
warden.
Later that morning, Perkins was in charge of distributing food
trays and refused to give a meal to Benjamin. Benjamin asked
Officer Walton, who was assisting Perkins, for a food tray, and
Perkins told Walton that Benjamin would not be eating because he
had filed grievances against Perkins and his fellow officers.
2
According to Benjamin, Walton and Perkins returned to his section
with a container from the food cart. Perkins threw the contents of
the container, which included tobacco spit, body waste, and tea, on
Benjamin.
At Benjamin's request, Leonard returned to Benjamin's cell,
and Benjamin reported the incident. Leonard ordered Benjamin to
remove his clothes, strip-searched him, and instructed Harvey and
Busby to escort Benjamin to a steel cage. After Benjamin's cell
was cleaned, Leonard, Busby, and Harvey came to the steel cage,
handcuffed Benjamin, and proceeded to take him back to his cell.
As he exited the cage, Busby struck Benjamin in the back of
his head with a closed fist, and Harvey hit him on the side of his
head. Both officers slammed Benjamin to the floor, Harvey kicked
him on the left cheek, and Leonard kicked him in the back.
Benjamin received another blow to the head but could not tell which
officer administered the blow. Perkins stood nearby with a friend
observing, cheering, and mocking Benjamin as he was beaten and did
nothing to defend or protect him. Leonard ordered several officers
to place Benjamin in restraints and to take him to the administra-
tive segregation infirmary.
Benjamin alleged that he was examined by Hester and Young.
Benjamin told the nurses that he was experiencing severe pain in
his back, head, and face, and there was a large lump on his
already-swollen left cheek. Benjamin stated that the nurses did
not provide treatment for his injuries or medication for pain.
3
The officers took pictures of Benjamin and escorted him back
to his cell. Benjamin remained in his cell for ten days without
any pants, shirts, socks, shoes, towel, pillow cases, sheets, or
blankets, even though the outdoor temperature was in the forty-
degree range.
II.
Benjamin sought equitable relief and money damages. The
defendants filed a motion to dismiss, asserting sovereign immunity
in their official capacities and qualified immunity in their
individual capacities. Attached to the motion to dismiss was
Leonard’s affidavit stating that Benjamin attempted to throw a
liquid substance on officers and became assaultive when Harvey and
Busby returned him from the security cell to his own cell.
According to Leonard, Benjamin was restrained and taken to the
infirmary for treatment, which he refused.
Benjamin filed a response in which he clarified that he was
suing the defendants in their individual capacities only. He
asserted that the defendants were not entitled to qualified
immunity in their individual capacities because they had violated
his clearly established constitutional rights.
The magistrate judge notified the parties that the defendants'
motion to dismiss would be construed as a motion for summary
judgment and invited the parties to submit additional summary
judgment evidence by May 15, 1995, if they so desired. On May 19,
4
1995, Benjamin filed a motion for extension of time, dated May 5,
requesting forty-five days to provide summary judgment evidence,
and a motion for appointment of counsel.
On June 1, 1995, the magistrate judge denied the motion for
extension of time and the motion for appointment of counsel. The
magistrate judge also submitted his report recommending that the
district court grant the defendants' motion for summary judgment.
Benjamin filed objections to the magistrate judge's report and
recommendation, a notice of appeal,* a motion for leave to amend
his complaint to delete the claims against Young and Hester and to
add claims of retaliation and racial discrimination against unknown
defendants, and an amended complaint. The district court conducted
de novo review, adopted the determinations and recommendation of
the magistrate judge, granted the defendants' motion for summary
judgment, and denied Benjamin's outstanding motions.
III.
A.
Benjamin asserts that the district court erred in granting
summary judgment in favor of the defendants on all of his claims.
In an appeal from summary judgment, we review the record de novo,
"examining the evidence in the light most favorable to [Benjamin],
*
This court dismissed the appeal from the recommendation of the
magistrate judge.
5
the nonmovant below." Duckett v. City of Cedar Park, 950 F.2d 272,
276 (5th Cir. 1992) (citation omitted). The first inquiry in
examining a defense of qualified immunity asserted in a motion for
summary judgment is whether the plaintiff has alleged "the
violation of a clearly established constitutional right." Siegert
v. Gilley, 500 U.S. 226, 231 (1991). We use "currently applicable
constitutional standards to make this assessment." Rankin v.
Klevenhagen, 5 F.3d 103, 106 (5th Cir. 1993). The second step is
to "decide whether the defendant's conduct was objectively
reasonable" in light of the legal rules clearly established at the
time of the incident. Spann v. Rainey, 987 F.2d 1110, 1114 (5th
Cir. 1993).
Summary judgment is proper when, viewing the evidence in the
light most favorable to the nonmovant, "there is no genuine issue
as to any material fact and . . . the moving party is entitled to
judgment as a matter of law." Amburgey v. Corhart Refractories
Corp., 936 F.2d 805, 809 (5th Cir. 1991); FED. R. CIV. P. 56(c). If
the moving party meets the initial burden of establishing that
there is no genuine issue, the burden shifts to the nonmoving party
to produce evidence of the existence of a genuine issue for trial.
Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986).
B.
In order to prevail on a claim of an Eighth Amendment
6
violation in the medical sense, a prisoner must show that a prison
official was deliberately indifferent to his serious medical needs
constituting unnecessary and wanton infliction of pain. Estelle v.
Gamble, 429 U.S. 97, 104-06 (1976). A prison official acts with
deliberate indifference "only if he knows that inmates face a
substantial risk of serious harm and [he] disregards that risk by
failing to take reasonable measures to abate it." Farmer v.
Brennan, 114 S. Ct. 1970, 1984 (1994); Reeves v. Collins, 27 F.3d
174, 176-77 (5th Cir. 1994). It is not enough that the plaintiff
is dissatisfied with the medical treatment he receives or that he
alleges mere negligence. Varnado v. Lynaugh, 920 F.2d 320, 321
(5th Cir. 1991).
Benjamin's authenticated medical records for October 1, 1993,
indicate that he was treated in the infirmary by Nurse D. Cox, not
Hester or Young. Benjamin complained that he was hit in the face
and back. The area under his eye was tender to the touch, and
there was a small scrape on his back. The nurse cleaned the area
with alcohol, applied a cool compress to Benjamin's face, and gave
him Advil for pain. Benjamin requested an x-ray of his face, and
the nurse made a notation to the doctor regarding a possible x-ray.
Benjamin complained the following day to Young that he had a
fractured jaw and blurred vision, but he accepted his breakfast and
lunch trays, and he was able to open his mouth wide for an
examination. Young noted that the swelling around his cheek did
7
not extend to the jaw, and his teeth were aligned.
Young contacted the emergency on-call doctor concerning a
neurological appointment and a possible x-ray. Benjamin was placed
on continuous watch and bed rest, and he received Feldene and
compresses for his cheek. Two days later, Benjamin received an x-
ray of his facial bones, and Hester made arrangements for an
evaluation of his back pain.
Hester noted that Benjamin refused to see the doctor for an
evaluation because he wanted to see a specialist at John Sealy
Hospital. Benjamin continued to complain of headaches and
backache, but no abnormalities were noted.
Assuming that Benjamin's complaint alleges an Eighth Amendment
violation against Hester and Young that extends beyond the day of
his injury to his follow-up care, he has not alleged facts to
demonstrate that Hester's and Young's conduct was objectively
unreasonable. The medical evidence does not indicate that the
nurses disregarded a substantial risk to Benjamin by failing to
take reasonable measures to abate it. Viewing the evidence in the
light most favorable to Benjamin, there is no genuine issue for
trial on the medical claim against the nurses, and summary judgment
in their favor was proper.
C.
At the first step of the Siegert analysis, Benjamin has
8
alleged a claim of excessive use of force against the officers. In
Hudson v. McMillian, 503 U.S. 1, 6-7 (1992), the Court held that
"whenever prison officials stand accused of using excessive
physical force in violation of the Cruel and Unusual Punishments
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." "The Court further
held that a prisoner need not show serious or significant injury in
an excessive force claim against prison officers where the force
used was unnecessary and wanton." Hudson v. McMillian, 962 F.2d
522, 523 (5th Cir. 1992). Under the present standard, which is
applicable in this case under both prongs of the analysis, the
following factors are relevant:
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 respon-
sible officials; and
5. any efforts made to temper the severity of a
forceful response.
Id. (citing Hudson, 503 U.S. at 7).
Benjamin did not respond within the time designated by the
magistrate judge to present additional summary judgment evidence.
He sought an extension of forty-five days because he wished to
obtain an affidavit and other documentary evidence from Jimmy
Wood, a justice of the peace, to support his allegations; his legal
mail had been delayed; and he wished to submit additional medical
9
records indicating a scar from the injury to his head. Further,
Benjamin stated that he was receiving legal assistance from "a more
skillful pro-se litigant" from another unit and that the mail
between them had been deliberately delayed. The magistrate denied
the motion for an extension of time for the following reasons:
Benjamin had not indicated what documents he needed from Wood or
how the documents were related to his case; the medical records
were already before the district court; and Benjamin had raised
issues regarding eye and skin conditions that were not relevant to
this action.
The magistrate judge determined that "the undisputed evidence
reveals that the actions of Defendants in using force was justi-
fied" because "the force was necessary in order to restore order
and maintain security and thus they did not violate clearly
established law." Because Benjamin "offered no evidentiary support
to the contrary," the magistrate judge recommended that the
district court find that the officers were entitled to qualified
immunity and grant their summary judgment motion. The district
court agreed with the magistrate judge.
Benjamin contends that the district court misrelied on
Leonard's version of the facts as presented in his affidavit
because the affidavit is factually and legally insufficient and
lacks credibility. Benjamin argues that the moving parties failed
to demonstrate the absence of a genuine issue of fact; therefore,
he was not required to provide additional affidavits and could
10
point to his sworn complaint and the evidence already in the
record.
Leonard's affidavit stated the following with regard to the
use of force: "I instructed Officers Harvey and Busby to return
the inmate to his cell. While they were removing the inmate from
the security cell, the inmate became assaultive and attempted to
jerk away from the escorting officer, Harvey, Richard, CO
III. . . . [T]he inmate was restrained on the floor and a video
camera and leg restraints were called for." The affidavit
conflicted with Benjamin's detailed verified complaint and the
record of the extensive medical treatment Benjamin received after
the incident. See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994)
(holding that a verified complaint is competent summary judgment
evidence). The movants have not established that there is no
genuine issue for trial; therefore, the district court erred in
granting summary judgment on the excessive-force claim. See
Amburgey, 936 F.2d at 809.
D.
In his verified complaint, Benjamin alleged that Walton and
Perkins denied him food because Benjamin had filed grievances
against Walton. Prison officials may not retaliate against an
inmate for pursuing grievance claims. See Gibbs v. King, 779 F.2d
1040, 1046 (5th Cir.), cert. denied, 476 U.S. 1117 (1986); Jackson
11
v. Cain, 864 F.2d 1235, 1248-49 (5th Cir. 1989). The movants did
not address Benjamin's claim of retaliation or present any evidence
to meet their initial burden of establishing that there was no
genuine issue for trial. See Isquith v. Middle South Util., 847
F.2d 186, 198-99 (5th Cir.) (noting that the burden does not shift
to the nonmovant until the movant has successfully discharged its
initial burden), cert denied, 488 U.S. 926 (1988). The district
court erred in granting summary judgment on the retaliation claim.
E.
Convicted prisoners are protected by the Eighth Amendment from
exposure to egregious physical conditions that deprive them of
basic human needs. Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
Under the Eighth Amendment, an inmate must be protected "against
conditions of confinement which constitute health threats but not
against those which cause mere discomfort or inconvenience."
Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied, 493
U.S. 969 (1989). The prisoner must show that "the risk that the
prisoner complains of [is] so grave that it violates contemporary
standards of decency to expose anyone unwillingly to such a risk."
Helling v. McKinney, 509 U.S. 25, 36 (1993).
The magistrate judge acknowledged that the movants did not
address Benjamin's allegations that he was held in a cell for ten
days without clothing, blankets, sheets, etc., in violation of the
12
Eighth Amendment. The magistrate judge determined that the cell
was climate controlled, Benjamin was not exposed to a health risk,
he suffered no injury, and the conditions caused mere discomfort
and inconvenience. None of the factors that led to the magistrate
judge's determination is in the record. The district court erred
in granting summary judgment on this issue.
F.
Benjamin argues that the district court erred in denying his
motion for appointment of counsel because he is uneducated and has
limited knowledge of the law. He contends that his case involves
multiple complex issues and that he was unable to amend his
complaint to included all of his claims.
A civil rights complainant has no absolute right to the
appointment of counsel. Freeze v. Griffith, 849 F.2d
172, 175 (5th Cir. 1988); Ulmer v. Chancellor, 691 F.2d
209, 212 (5th Cir. 1982). In fact, the appointment of
counsel is unnecessary unless a case presents exceptional
circumstances. Ulmer, 691 F.2d at 212-213.
Among the factors we must consider in deciding
whether to appoint counsel are the complexity of the
issues and the ability of [Benjamin] to represent himself
adequately. See id. at 213.
Hulsey v. Texas, 929 F.2d 168, 172-73 (5th Cir. 1991).
Contrary to Benjamin's assertions, the facts of this case are
not complicated, and Benjamin has demonstrated an ability to
present the facts of his claim adequately. The court did not abuse
its discretion in denying his motion for appointment of counsel.
13
See Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir. 1985).
G.
Benjamin contends that the district court erred in denying his
motion to amend his complaint, filed contemporaneously with his
objections to the magistrate judge's report and recommendation. He
argues that his amended complaint contained factual information
concerning the excessive-force, retaliation, and conditions-of-
confinement claims. Further, he contends that the new claims
concerning a failure to train and supervise and a policy of racial
discrimination are plainly linked to the claims in his original
complaint.
"A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is served . . . ."
FED. R. CIV. P. 15(a). Benjamin's motion to amend his complaint and
his amended complaint were filed after the magistrate judge prepared
his report. At the time Benjamin sought to amend, he had filed his
original complaint, and the defendants had filed a motion to
dismiss, which was converted to a motion for summary judgment.
Neither a motion to dismiss nor a motion for summary judgment is a
responsive pleading that "extinguishes a plaintiff's right to amend
a complaint." Zaidi v. Ehrlich, 732 F.2d 1218, 1219-20 (5th Cir.
1984). Therefore, Benjamin could exercise his right to amend
automatically. Because Benjamin petitioned the court for leave to
14
amend, the court should have granted the petition. See Zaidi, 732
F.2d at 1220.
IV.
The grant of summary judgment on the claims of deliberate
indifference to Benjamin's serious medical needs against Young and
Hester is AFFIRMED. Because the movants did not meet their burden
of establishing the absence of a genuine issue for trial, summary
judgment of the claims of excessive use of force, retaliation, and
unconstitutional conditions of confinement are VACATED and REMANDED
for further proceedings. Benjamin should be allowed to file an
amended complaint. Further, Benjamin's claims for equitable/in-
junctive relief should be dismissed as moot by the district court.
See Powell v. McCormack, 395 U.S. 486, 496 (1969). He is no longer
incarcerated at the Hughes Unit; therefore, he lacks a legally
cognizable interest in the outcome.
15