UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUDOLPH MCNEIL,

Plaintiff-Appellant,

v.

THOMAS CORCORAN, Warden;

COMMISSIONER OF CORRECTION;

SERGEANT BROWN; LIEUTENANT HALL;

CORRECTIONAL OFFICER DORSEY, II;

SERGEANT JOHNSON; CORRECTIONAL

No. 98-7093

OFFICER SMITH, II; CORRECTIONAL

OFFICER TAYLOR, II; CORRECTIONAL

OFFICER BURRELL; CORRECTIONAL

OFFICER GUY, II; CORRECTIONAL

OFFICER BRIDGEPORT, II; M. D.

GAVIGAN, Lieutenant; EDWARD

TAMES, Sergeant,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Andre M. Davis, District Judge.

(CA-97-3675-AMD)

Submitted: December 22, 1998

Decided: January 14, 1999

Before MURNAGHAN and NIEMEYER, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Rudolph McNeil, Appellant Pro Se. John Joseph Curran, Jr., Attorney

General, Stephanie Judith Lane-Weber, Assistant Attorney General,

Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Rudolph McNeil appeals the decision of the district court granting

summary judgment on behalf of Defendants in his civil rights action

under 42 U.S.C.A. § 1983 (West Supp. 1998). McNeil, an inmate at

the Maryland House of Correction Annex (MCHX), alleges that he

was the victim of excessive force. For the reasons set forth below, we

vacate the judgment of the district court and remand for further proceedings.

In May of 1997, a series of events culminated in an inmate uprising

at MCHX. In the aftermath of this event, the prison warden ordered

a search of all cells in order to locate weapons that were used during

the disturbance. It was during the search of McNeil's cell pursuant to

that order that the events leading to this action occurred.

Our examination of the record reveals a number of inconsistent factual allegations; however, the following facts are undisputed. On May

9, 1997, an altercation occurred between one or more guards and

McNeil during the search of McNeil's cell. McNeil was then taken to

the prison infirmary for treatment. He was seen by a nurse briefly in

the infirmary and then placed in solitary confinement. In the following eighteen days, McNeil requested medical attention, either formally or informally, at least six times, but was denied access to

medical personnel. On May 30, three weeks after the altercation,

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McNeil was seen by a physician who noted a history of "blunt trauma

to the body." (R. 20, exh. 2 at 2). On June 9, McNeil was admitted

to the infirmary after becoming ill and was diagnosed with acute

appendicitis. Doctors successfully performed an emergency appendectomy. McNeil thereafter filed the instant suit alleging violation of

his civil rights.

The record also discloses a number of inconsistent factual allegations between the parties that directly relate to the necessity of Defendants' use of physical force against McNeil as well as to the causation

of McNeil's appendicitis. First, Defendants assert that any force used

against McNeil was a direct result of his failure to comply with their

orders incident to the search of McNeil's cell, while McNeil claims

to have been subjected to an unprovoked beating. Second, McNeil

states in his affidavit that, while in the infirmary, he was subjected to

a second and lengthy beating by prison guards. The Defendants flatly

deny this allegation. Finally, McNeil claims that his appendicitis was

the result of injuries sustained from the actions of the Defendants. The

Defendants also deny this allegation.

In granting summary judgment for the Defendants, the district

court determined that the force used against McNeil was necessary to

gain his compliance: "the force used was not only necessary but was

measured and of short duration, and therefore did not comprise the

malicious or sadistic use of force prohibited under the Constitution."

(R. 25 at 10). We conclude, however, that such a determination was

premature. Where resolution of an issue of fact depends upon credibility determinations, summary judgment is not appropriate. See Gray

v. Spillman, 925 F.2d 90, 95 (1991). To the contrary, credibility determinations are the responsibility of the jury. See Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986). In determining that the force

employed was necessary, the court implicitly accepted the version of

events as sworn by the Defendants and rejected those of McNeil. This

it cannot do on a motion for summary judgment.

The court also erred in its determination that McNeil failed to

allege sufficient evidence of more than de minimis injuries. In his

affidavit, McNeil alleged that his appendicitis was proximately

caused by the Defendants' actions.1 While the defendants deny

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1 Although expressing no opinion as to the ultimate merits of this

claim, we note that Dorland's illustrated medical dictionary 109 (28th ed.

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McNeil's claim, we cannot conclude on the present record that there

is no genuine issue of material fact as to the cause of McNeal's

appendicitis. Accordingly, summary judgment was premature.

Finally, the court dismissed the action in part based on McNeil's

failure to specify who he claims beat him in the prison infirmary.2

However, McNeil identified the staff members who he states were in

the infirmary with him at the time of the incident. Because McNeil

was proceeding pro se, the court should have permitted him an opportunity to amend his complaint to more specifically identify the guards

or other staff who allegedly beat him. See Gordon v. Leeke, 574 F.2d

1147, 1152-53 (4th Cir. 1978).

We vacate the judgment of the district court and remand the case

for further proceedings consistent with this opinion. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

significantly aid the decisional process.

VACATED AND REMANDED

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1994) defines traumatic appendicitis as "appendicitis caused by external

trauma."

2 As the court noted, McNeil only identified the guards responsible for

a few of the blows allegedly inflicted on him.

 4