Flores v. Dretke

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20986
Summary Calendar
ARTURO EDELMIOR FLORES
Plaintiff-Appellant,
VERSUS
DOUGLAS DRETKE; ET AL
Defendants,
BENNIE, Correctional Officer III;
AGUILAR, Captain; RALPH BENNETT
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of Texas
(No. H-98-CV-2151)
November 14, 2001
Before DeMOSS, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Arturo E. Flores appeals the district
court’s dismissal of his suit under 42 U.S.C. § 1983, an action
alleging violations of his Eighth Amendment right to be free from
*
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opinion should not be published and is not precedent except under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.
cruel and unusual punishment. The district court found that
Flores had failed to show that he was injured by the rough
handling he received by Defendants and for that reason determined
that Flores’s complaint did not state a claim for relief. We
disagree with this determination and reverse and remand for
further proceedings.
In brief, Flores in late 1997 fell from a truck while
loading sacks of cotton seed, the fall apparently causing him to
lose consciousness. Flores complains that he was kicked and
abused by a corrections officer, Ralph Bennett, while on the
ground following the fall and that a kick from the officer
severely injured his right eye. Bennett called medical personnel
and an unnamed field supervisor to Flores’s aid, but Flores
contends that they also abused him. Following his return to
prison, Flores contends that he was assigned to administrative
segregation when he refused to sign paper representing that his
fall was caused by another inmate. This suit was initiated
almost a year later. The district court heard testimony on
Flores’s claims in late 2000 and thereafter announced that an
order of dismissal would be forthcoming. Flores made a timely
appeal.
The district court was not clear about the provision under
which it was dismissing Flores’s suit. But under either of the
then-applicable rules--28 U.S.C. § 1915(e)(2) and Fed. R. Civ. P.
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12(b)(6)--we review a district court’s dismissal de novo. See
Moore v. Carwell, 168 F.3d 234, 236 (5th Cir. 1999). Whether
there was excessive force in violation of the Eighth Amendment
depends on if the force was used in a “good-faith effort to
maintain or restore discipline” or instead was merely gratuitous.
See Hudson v. McMillian, 503 U.S. 1, 7 (1992). An inmate need
not show serious injury to make out a claim for excessive force,
but any injury suffered must be more than de minimus. See Gomez
v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999). In his amended
complaint, Flores contends that while semiconscious and unable to
move Bennett kicked him in the head, causing damage to Flores’s
eye, which required several months’ medical treatment. Such
force cannot be part of any appropriate effort to maintain
discipline, so we must conclude that Flores had sufficiently
alleged a constitutional violation. The same holds for Flores’s
allegations against an unnamed field supervisor and the attending
medical personnel. Flores states that those persons also kicked
him and that they dragged him to the ambulance, further
exacerbating Flores’s injuries. That he does not allege that he
sustained a serious injury at those individuals’ hands is not
fatal to Flores’s excessive force claim.
The district court correctly dismissed Flores’s other
claims, however. Being placed in administrative segregation
cannot give rise to a cognizable constitutional injury. See
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Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). And we agree
with the district court’s refusal to appoint counsel, this case
being straightforward and Flores having managed to represent
himself up to this point. See Ulmer v. Chancellor, 691 F.2d 209,
213 (5th Cir. 1982).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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