Davis v. Cannon , 91 F. App'x 327 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 26, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-41596
Summary Calendar
PIERRE L. DAVIS,
Plaintiff-Appellant-
Cross-Appellee,
versus
DEWAYNE CANNON, Warden at Bowie County Correctional Center; MARK
STEELE, Correctional Officer at Bowie County Correctional Center;
T. REED, Colonel, Correctional Officer at Bowie Correctional
Center; MICHAEL S. CAMPBELL, Correctional Officer at Bowie
Correctional Center,
Defendants-Appellees-
Cross-Appellants.
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Appeals from the United States District Court
for the Eastern District of Texas
USDC No. 5:00-CV-104
--------------------
Before JOLLY, WIENER, and PICKERING, Circuit Judges
PER CURIAM:*
Pierre L. Davis, Wisconsin prisoner No. 271136, appeals the
district court’s judgment granting Defendants Dewayne Cannon,
Mark Steele, T. Reed, and Michael S. Campbell’s motion for
summary judgment, denying his motion for summary judgment,
*
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that this opinion should not be published and is not precedent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. 02-41596
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dismissing his 42 U.S.C. § 1983 claims with prejudice, and
dismissing his state law claims without prejudice.
Davis contends that genuine issues of material fact exist as
to whether Steele violated his Eighth Amendment right to be free
from cruel and unusual punishment when he sprayed him with a
chemical agent. Davis has failed to show any genuine issue of
material fact that Steele sprayed him with a chemical agent
maliciously or sadistically to cause him harm rather than in a
good faith effort to maintain or restore discipline, and not .
See Baldwin v. Stalder, 137 F.3d 836, 840-41 (5th Cir. 1998).
Therefore, this claim is without merit.
Davis contends that Reed and Campbell violated his Eighth
Amendment right when they failed to intervene and protect him
from Steele’s excessive use of force. As Steele’s actions did
not constitute excessive force, Reed and Campbell are not liable
for failing to intervene and protect Davis. Cf. Hale v. Townley,
45 F.3d 914, 919 (5th Cir. 1995).
Davis contends that Steele, Reed, and Campbell used
excessive force when they forcefully threw him on the ground
after Steele sprayed him with a chemical agent. Defendants’
actions were a continuation of their good faith effort to
maintain or restore discipline following Davis’s repeated refusal
to obey Steele’s orders. Further, Davis did not allege any
physical injury as a result of being thrown to the ground.
Accordingly, this claim is without merit. See Baldwin, 137 F.3d
No. 02-41596
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at 840-41; Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.
1997).
Davis contends that genuine issues of material fact exist as
to whether Steele, Reed, and Campbell’s search of his cell
amounted to calculated harassment unrelated to prison needs in
violation of the Eighth Amendment. Davis’s conclusional
allegation that Defendants searched his cell because he was vocal
and filed many grievances is insufficient to defeat summary
judgment. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.
1995).
Davis contends that genuine issues of fact exist as to
whether the defendants violated his Eighth Amendment rights when
they subjected him to hazardous conditions and substances by
returning him to the same cell where the chemical agent remained
in the air. Davis has failed to show any genuine issue of
material fact that the exposure was sufficiently serious or that
the defendants acted with deliberate indifference to his health
or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994).
Davis does not specifically address the district court’s
decline to exercise supplemental jurisdiction over his state law
claims. As he failed to brief this issue, he has abandoned any
argument relating to the district court’s dismissal of his state
law claims without prejudice. See Yohey v. Collins, 985 F.2d
222, 224-25 (5th Cir. 1993).
No. 02-41596
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Accordingly, the district court’s judgment granting the
defendants’ motion for summary judgment, denying Plaintiff’s
motion for summary judgment, dismissing Plaintiff’s 42 U.S.C. §
1983 claims with prejudice, and dismissing his state law claims
without prejudice is AFFIRMED.