*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opinion should not be published and is not precedent except under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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-20311

Summary Calendar

 

DONALD RAY HOWARD,

Plaintiff-Appellant,

versus

S.F. KENNEDY; BOBBY RIGGS; TRACY SCHULTZ,

Defendants-Appellees.

 

Appeal from the United States District Court

for the Southern District of Texas

(H-95-CV-3680)

 

March 19, 1999

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.*

PER CURIAM:

Donald Ray Howard appeals the summary judgment in favor of the

defendants in his civil rights action filed and adjudicated

pursuant to 42 U.S.C. § 1983. Howard argues that the evidence was

sufficient to show that his injuries were more than de minimis and

that as a result a genuine issue of material fact existed regarding
2

whether the assault against him by Kennedy resulted in excessive

force. Howard also appeals various other rulings by the district

court and his failure to receive a jury trial.

The district court did not err in dismissing Riggs and Schultz

from the suit. These individuals were sued only in their

supervisory capacities, but Howard did not allege that they acted

personally in his assault or that a Brazos County Jail policy

caused or failed to prevent his assault. See Baker v. Putnal, 75

F.3d 190, 199 (5th Cir. 1996). Because Howard has plainly failed

to even allege a cause of action against these defendants,

dismissal on summary judgment is proper.

The district court did err, however, in dismissing Howard’s

cause of action against Kennedy on the basis that Howard’s injuries

following the assault were de minimis and therefore could not have

been caused by sadistic or wanton acts. De minimis uses of

physical force are excluded from constitutional recognition under

the Eighth Amendment. Hudson v. McMillian, 503 U.S. 1, 9-10

(1992). The actions giving rise to Howard’s injuries and the

injuries themselves, however, are very similar to those in Gomez v.

Chandler, 163 F.3d 921, 922-25 and n.5 (5th Cir. 1999). In

Gomez—handed down after the district court’s decision here—the

prisoner alleged that he had done nothing to provoke the attack

against him and the district court declined to resolve the parties’

factual disputes. Id. Likewise, Howard and Kennedy have set forth

widely varying accounts with respect to Howard’s provocation of the

attack, and the district court did not resolve the factual dispute.
 

1In his sworn complaint and in his sworn summary judgment

response, Howard asserted in substance the following. He was

walking back to his cell from the multi-purpose room when Kennedy

hit him in the back of the neck and head, knocking him to the

ground. While Howard was on the ground half-dazed, Kennedy hit him

again in the forehead, knocking his head against the concrete and

rendering him unconscious. By the time Howard recovered, he was

handcuffed and being picked up from the floor. He did nothing to

provoke Kennedy’s attack. He suffered a bump on the forehead that

would not go away, a stiff neck that “comes and goes,” and

headaches.

Because the district court dismissed the excessive force claim

on the basis that, even accepting Howard’s version of the events,

no sufficient injury was shown, it did not address Kennedy’s

qualified immunity defense. We rule only on the sufficiency of

injury issue on the basis of Howard’s version of the events as

noted above. Any other issues respecting the excessive force claim

against Kennedy we leave for the district court to address in the

first instance. We do note that if Howard’s version of the events

in question is accepted, Kennedy is not likely to be entitled to

qualified immunity. See Spann v. Rainey, 987 F.2d 1110, 1114 (5th

Cir. 1993).

3

Under Howard’s version of the events, which the district court

implicitly accepted, we cannot say that Howard’s injuries are as a

matter of law de minimis in light of an unprovoked assault by a

police officer.1

As for the other claims raised by Howard, none have merit.

The district court did not abuse its discretion in limiting

discovery in the early stages of the case, pending a motion for

summary judgment by the defendants. See Gaines v. Davis, 928 F.2d

705, 707 (5th Cir. 1991) (immune defendant has the right to be free

of burdens of broad-reaching discovery). Howard was not denied his

right to a trial by jury because he did not request such a trial

and thereby waived it. See Fed. R. Civ. P. 38(b), 38(d). Finally,

the district court did not err in denying Howard’s request for a

default judgment which was filed after the defendants had filed an
4

answer. See McCorstin v. United States Dep’t of Labor, 630 F.2d

242, 244 (5th Cir. 1980). Because Howard does not challenge on

appeal the dismissal of his inadequate medical care claim, any

complaint in that respect is waived and the dismissal of that claim

is affirmed.

The dismissal of all Howard’s claims, save only his excessive

force claim against Kennedy, is AFFIRMED. The dismissal of the

excessive force claim against Kennedy is VACATED and that claim is

remanded for further proceedings not inconsistent herewith.

AFFIRMED in part, VACATED and REMANDED in part