Barnes v. Johnson , 204 F. App'x 377 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 30, 2006
Charles R. Fulbruge III
Clerk
No. 04-30852
Summary Calendar
RICKEY BARNES,
Plaintiff-Appellant,
versus
DAVID JOHNSON; RUSSELL BORDELON; BILLY MONTGOMERY; CLINT BOND;
HARVEY SLATER; JOHN DOE, Security Officer; JOHN DOE, Security
Officer; JOHN DOE, Security Officer; PETE HEFLIN; UNKNOWN DAVIS;
UNKNOWN ORR; JOHN DOE, Classification Officer; JOHN DOE, Mental
Health Officer; JOE SERIO; BRYAN JUNEAU; UNKNOWN MILLS; RICHARD
STALDER; SHIRLEY COODY,
Defendants-Appellees.
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Appeals from the United States District Court
for the Middle District of Louisiana
USDC No. 3:03-CV-83-D-M1
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Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Rickey Barnes, Louisiana prisoner # 119466, appeals the
dismissal of his pro se 42 U.S.C. § 1983 civil rights action.
Barnes alleged that the defendants used excessive force against him
and were deliberately indifferent to his resulting serious medical
needs.
*
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this opinion should not be published and is not precedent except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. 04-30852
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The district court dismissed the allegations against
defendants Montgomery and Barnes for failure to state a claim. We
review such a dismissal de novo. See Berry v. Brady, 192 F.3d 504,
507 (5th Cir. 1999). To state an Eighth Amendment excessive force
claim, a plaintiff must allege that the force was not “applied in
a good-faith effort to maintain or restore discipline, [but]
maliciously and sadistically to cause harm,” and that he suffered
an injury. See Hudson v. McMillian, 503 U.S. 1, 7 (1992). Barnes
made no allegation in his complaint that he suffered any injury as
a result of the macing by Montgomery and Barnes; he alleged only
that he immediately rinsed his face and eyes. Accordingly, the
district court’s dismissal of the excessive-force claim against
defendants Montgomery and Bond is affirmed.
We review de novo the district court’s grant of defendant
Slater’s motion for summary judgment. Cousin v. Small, 325 F.3d
627, 637 (5th Cir. 2003). Summary judgment is proper where the
pleadings and summary judgment evidence present no genuine issue of
material fact and the moving party is entitled to a judgment as a
matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). The court may not weigh the evidence nor
make credibility determinations. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Barnes verified his complaint in
a form substantially similar to that set forth in 28 U.S.C. § 1746.
R. 1, 59. His complaints and allegations set forth therein are
thus considered competent summary judgment evidence. See King v.
No. 04-30852
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Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (a verified complaint may
serve as competent summary-judgment evidence).
Barnes’s allegations of severe injury directly contradict the
defendants’ summary-judgment affidavits stating that Barnes
sustained only a bruise to the inside of his lip. Even if the
medical records show that Barnes could prove only that he suffered
a bruised lip, this is not a per se de minimis injury. The district
court did not evaluate this injury in light of the remaining Hudson
factors, i.e., need for the application of force, relationship
between the need and use of force, threat perceived by the
official, and efforts made to temper the severity of the response.
See Hudson, 503 U.S. at 6-7. Without this inquiry and analysis of
the allegations in light of the Hudson factors, it cannot be said
that the force used by Slater was de minimis or that the injury
suffered by Barnes was de minimis. See id. at 7; see also Williams
v. Bramer, 180 F.3d 699, 703-04 (5th Cir. 1999). Accordingly, the
summary judgment in favor of Slater is VACATED and this case is
REMANDED for further proceedings.
Barnes challenges the dismissal of the three unidentified,
unserved CET members. We review this dismissal under Federal Rule
of Civil Procedure 4(m) for an abuse of discretion. Fournier v.
Textron Inc., 776 F.2d 532, 534 (5th Cir. 1985). Under Rule
4(m), if a defendant is not served within 120 days of the filing of
the complaint, the district court “shall dismiss the action without
prejudice as to that defendant or direct that service be effected
No. 04-30852
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within a specified time.” Fed. R. Civ. P. 4(m). However, “if the
plaintiff shows good cause for the failure, the court shall extend
the time for service for an appropriate period.” Id.; see Thompson
v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).
It is not clear from the record that the district court
considered whether Barnes had shown good cause or whether a
permissive extension of time for service was warranted. A review
of the record supports Barnes’s assertion that the names of these
CET members do not appear in the record. On this record, we
conclude that the district court abused its discretion in summarily
dismissing the three unserved, and as yet unidentified, CET
members. Accordingly, we VACATE the dismissal of these three
defendants and REMAND to the district court.
Barnes argues that the district court erred in dismissing for
failure to state a claim his allegation that Dr. Heflin was
deliberately indifferent to his serious medical needs. To state a
claim of deliberate indifference to medical needs, the plaintiff
must allege facts showing that the defendant denied him treatment,
purposefully gave him improper treatment, or ignored his medical
complaints. See Domino v. Texas Dep’t of Criminal Justice, 239
F.3d 752, 756 (5th Cir. 2001). A delay in medical care violates
the Eighth Amendment only if it is due to deliberate indifference
and the delay results in substantial harm. Mendoza v. Lynaugh, 989
F.2d 191, 195 (5th Cir. 1993).
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Barnes’s assertion that he had to wait three hours at the
prison hospital before he was seen by Dr. Heflin does not clearly
evince any official dereliction or indifference by Heflin; Barnes
likely would have had a similar wait in a real-world emergency
room. Additionally, Barnes’s assertion that Heflin did no more
than a cursory examination but did not conduct a more through
“physical” examination or take x-rays alleges, at most, negligence
or medical malpractice, which do not give rise to a § 1983 cause of
action, and an inmate’s disagreement with his medical treatment
does not establish a constitutional violation. See Varnado v.
Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Barnes did not plead any facts which, if proved, would
establish that Heflin denied him treatment, purposefully gave him
improper treatment, or ignored his medical complaints. See Domino,
239 F.3d at 756. Accordingly, the district court did not err in
dismissing the claims against Heflin, and this portion of the
district court’s judgment is AFFIRMED.
Barnes explicitly abandons on appeal any issues regarding the
dismissal of his claims against Johnson and Bordelon and the
district court’s denial of discovery. He does not argue on appeal
that the district court erred in dismissing the other defendants
and has abandoned any such arguments by failing to brief them. See
Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).
Accordingly, the district court’s dismissal of these defendants and
the denial of discovery are AFFIRMED.
No. 04-30852
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AFFIRMED IN PART; VACATED AND REMANDED IN PART; ALL
OUTSTANDING MOTIONS ARE DENIED.