Pursuant to 5 T H C IR. R. 47.5, the court has determined that this opini o n

should not be published except under the limited circumstances set forth

in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 95-50739

Summary Calendar

_______________

LEON ANTHONY BENJAMIN,

Plaintiff-Appellant,

VERSUS

RICHARD HARVEY, et al.,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Western District of Texas

(95-CR-20036)

_________________________

July 11, 1996

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

Leon Benjamin appeals an adverse summary judgment in his

prisoner’s civil rights suit filed pursuant to 42 U.S.C. § 1983.

We affirm in part and vacate and remand in part.

I.2

At the time he filed suit in March 1994, Benjamin was a Texas

state prisoner confined at the Hughes Uni t in Gatesville, Texas.

He filed a verified civil rights complaint against correctional

officers Richard Harvey, Kirk Perkins, and Michael Busby; Sergeant

Raymond Leonard; an d nurses Cynthia Hester and C.C. Young.

Benjamin asserted that the officers had retaliated against him,

inflicted cruel and unusual punishm ent, failed to protect him,

conspired to violate his civil rights , and used excessive force;

and the nurses deprived him of medical care following the use of

force in violation of the U.S. Constitution and the laws of Texas.

Benjamin alleged specifically that Perkins made verbal threats

to ha rm him physically because Benjamin had filed grievances

against Perkins and other officers. Benjamin asked to see a

supervisor to report the verbal abuse and threats, and Leonard

responded. Leonard asked Benjamin why he had thrown urine on

Perkins, and Benjamin stated that Perkins was lying if he said that

Benjamin had thrown anything. Leonard called upon Harvey, Busby,

and Bell to search Benjamin's cell and to remove all containers and

personal property. Benjamin prepared a complaint to the unit

warden.

Later that morning, Perkins was in charge of distributing food

trays and refused to give a meal to Benjamin. Benjamin asked

Officer Walton, who was assisting Perkins, for a food tray, and

Perkins told Walton that Benjamin would not be eating because he

had filed grievances against Perkins and his fellow officers.3

According to Benjamin, Walton and Perkins returned to his section

with a container from the food cart. Perkins threw the contents of

the container, which included tobacco spit, body waste, and tea, on

Benjamin.

At Benjamin's request, Leonard returned to Benjamin's cell,

and Benjamin repo rted the incident. Leonard ordered Benjamin to

remove his clothes, strip-searched him, and instructed Harvey and

Busby to escort Benjamin to a steel c age. After Benjamin's cell

was cleaned, Leonard, Busby, and Harvey came to the steel cage,

handcuffed Benjamin, and proceeded to take him back to his cell.

As he exited the cage, Busby struck Benjamin in the back of

his head with a closed fist, and Harvey hit him on the side of his

head. Both officers slammed Benjamin to the floor, Harvey kicked

him on the left cheek, and Leonard kicked him in the back.

Benjamin received another blow to the head but could not tell which

officer administered the blow. Perkins stood nearby with a friend

observing, cheering, and mocking Benjamin as he was beaten and did

nothing to defend or protect him. Leonard ordered several officers

to place Benjamin in restraints and to take him to the administrative segregation infirmary.

Benjamin alleged that he was examined by Hester and Young.

Benjamin told the nurses that he was experiencing severe pain in

his back, head, and face, and there was a large lump on his

alrea dy-swollen left cheek. Benjamin stated that the nurses did

not provide treatment for his injuries or medication for pain.4

The officers took pictures of Benjamin and escorted him back

to his cell. Benjamin remained in his cell for ten days without

any pants, shirts, socks, shoes, towel, pillow cases, sheets, or

blankets, ev en though the outdoor temperature was in the fortydegree range.

II.

Benjamin sought equitable relief and money damages. The

defendants filed a motion to dismiss, asserting sovereign immunity

in their official capacities and qualified immunity in their

individual capacities. Attached to the motion to dismiss was

Leonard ’s affidavit stating that Benjamin attempted to throw a

liquid substance on officers and became assaultive when Harvey and

Busby returned him from the security cell to his own cell.

According to Leonard, Benjamin was restrained and taken to the

infirmary for treatment, which he refused.

Benjamin filed a response in which he clarified that he was

s uing the defendants in their individual capacities only. He

asserted t hat the defendants were not entitled to qualified

immunity in their individual capacities because they had violated

his clearly established constitutional rights.

The magistrate judge notified the parties that the defendants'

motion to dismiss would be construed as a motion for summary

judgment and invited the parties to submit additional summary

judgment evidence by May 15, 1995, if they so desired. On May 19,* This court dismissed the appeal from the recommendation of the

magistrate judge.

5 1995, Benjamin filed a motion for extension of time, dated May 5,

requesting forty-five days to provide summary judgment evidence,

and a motion for appointment of counsel.

On June 1, 1995, the magistrate judge denied the motion for

extension of time and the motion for appointment of counsel. The

magistrate judge also submitted his report recommending that the

district court grant the defendants' motion for summary judgment.

Benjamin filed objections to the magistrate judge's report and

recommendation, a notice of appeal, * a motion for leave to amend

his complaint to delete the claims against Young and Hester and to

add claims of retaliation and racial discrimination against unknown

defendants, and an amended complaint. The district court conducted

d e novo review, adopted the determinations and recommendat ion of

the magistrate judge, granted the defen dants' motion for summary

judgment, and denied Benjamin's outstanding motions.

III.

A.

Benjamin asserts that the district court erred in granting

summary judgment in favor of the defendants on all of his claims.

In an appeal from summary judgment, we review the record de novo

,

"examining the evidence in the light most favorable to [Benjamin],6

the nonmovant below." D uckett v. City of Cedar Park, 950 F.2d 272,

276 (5th Cir. 1992) (citation omitted). The first inquiry in

examining a defense of qualified immunity asserted in a motion for

summary judgment is whether the pla intiff has alleged "the

violation of a clearly established constitutional right." S iegert

v. Gilley

, 500 U.S. 226, 231 (1991). We use "currently applicable

constitutional standards to make this assessment." R ankin v.

Klevenhagen , 5 F.3d 103, 106 (5th Cir. 1993). The second step is

to "decide whether the defendant's conduct was objectively

reasonable" in light of the legal rules clearly established at the

time of the incident. S pann v. Rainey

, 987 F.2d 1110, 1114 (5th

Cir. 1993).

Summary judgment is proper when, viewing the evidence in the

light most favorable to the nonmovant, "there is no genuine issue

as to any material fact and . . . the moving party is entitled to

judgment as a matter of law." A mburgey v. Corhart Refractories

Corp., 936 F.2d 805, 809 (5th Cir. 1991); F ED

. R. C IV

. P. 56(c). If

the moving party meets the initial burden of establishing that

there is no genuine issue, the burden shifts to the nonmoving party

to produce evidence of the existence of a genuine issue for trial.

Celotex Corp. v. Catrett , 477 U.S. 317, 321 (1986).

B.

In order to prevail on a claim of an Eighth Amendment7

violation in the medical sense, a prisoner must show that a prison

official was deliberately indifferent to his serious medical needs

constituting unnecessary and wanton infliction of pain. E stelle v.

Gamble , 429 U.S. 97, 104-06 (1976). A prison official acts with

deliberate indifference "only if he kn ows that inmates face a

substantial risk of serious harm and [he] disregards that risk by

failing to take reasonable measures to abate it." F armer v.

Brennan , 114 S. Ct. 1970, 1984 (1994); Reeves v. Collins , 27 F.3d

174, 176-77 (5th Cir. 1994). It is not enough that the plaintiff

is dissatisfied with the medical treatment he receives or that he

alleges mere negligence. V arnado v. Lynaugh

, 920 F.2d 320, 321

(5th Cir. 1991).

Benjamin's authenticated medical records for October 1, 1993,

indicate that he was treated in the infirmary by Nurse D. Cox, not

Hester or Young. Benjamin complained that he was hit in the face

and back. The area under his eye was tender to the touch, and

there was a small scrape on his back. The nurse cleaned the area

with alcohol, applied a cool compress to Benjamin's face, and gave

him Advil for pain. Benjamin requested an x-ray of his face, and

the nurse made a notation to the doctor regarding a possible x-ray.

Benjamin complained the following day to Young that he had a

fractured jaw and blurred vision, but he accepted his breakfast and

lunch trays, and he was able to open his mo uth wide for an

examination. Young noted that the swelling around his cheek did8

not extend to the jaw, and his teeth were aligned.

Youn g contacted the emergency on-call doctor concerning a

neurological appointment and a possible x-ray. Benjamin was placed

on continuous watch and bed rest, and he received Feldene and

compresses for his cheek. Two days later, Benjamin received an xray of his facial bones, and Hester made arrangements for an

evaluation of his back pain.

Hester noted that Benjamin refused to see the doctor for an

evaluation because he wanted to see a specialist at John Sealy

Hospital. Benjamin continued to complain of headaches and

backache, but no abnormalities were noted.

Assuming that Benjamin's complaint alleges an Eighth Amendment

violation against Hester and Young that extends beyond the day of

his injury to his follow-up care, he has not alleged facts to

demonstrate that Hester's and Young's conduct was objectively

unreasonable. The medical evidence does not indicate that the

nurs es disregarded a substantial risk to Benjamin by failing to

take reasonable measures to abate it. Viewing the evidence in the

light most favorable to Benjamin, there is no genuine issue for

trial on the medical claim against the nurses, and summary judgment

in their favor was proper.

C.

At the first step of the S iegert analysis, Benjamin has9

alleged a claim of excessive use of force against the officers. In

Hudson v. McMillian

, 503 U.S. 1, 6-7 (1992), the Court held that

"whenever prison officials stan d accused of using excessive

phy sical force in violation of the Cruel and Unusual Punishments

Clause, the core judicial inquiry is

. . . whethe r force was

applied in a good-faith effort to maintain or restore discipline,

or maliciously and sadistically to cause harm." "The Court further

held that a prisoner need not show serious or significant injury in

an excessive force cl aim against prison officers where the force

used was unnecessary and wanton." H udson v. McMillian

, 962 F.2d

522, 523 ( 5th Cir. 1992). Under the present standard, which is

applicable in this case under both prongs of the analysis, the

following factors are relevant:

1. the extent of the injury suffered;

2. the need for the application of force;

3. the relationship between the need and the

amount of force used;

4. the threat reasonably perceived by the responsible officials; and

5. any efforts made to temper the se verity of a

forceful response.

Id . (citing Hudson , 503 U.S. at 7).

Benjamin did not respond within the time designated by the

magistrate judge to present additional summary judgment evidence.

He sought an extension of forty-five days because he wished to

obtain an affidavit and other documentary evidence from Jimmy

Wood, a justice of the peace, to support his allegations; his legal

mail had been delayed; and he wished to submit additional medical10

records indicating a scar from the injury to his head. Further,

Benjamin stated that he was receiving legal assistance from "a more

s killful pro-se litigant" from another unit and that the m ail

between them had been deliberately delayed. The magistrate denied

the motion for an extension of time for the following reasons:

Benjamin had not indicated what documents he needed from Wood or

how the documents were related to his case; the medical records

were already before the district court; and Benjamin had raised

issues regarding eye and skin conditions that were not relevant to

this action.

The magistrate judge determined that "the undisputed evidence

reveals that the actions of Defendants in using force was justified" because "the force was necessary in order to restore order

and maintain security and thus they did not violate clearly

established law." Because Benjamin "offered no evidentiary support

to the contrary," the magistrate judge recomme nded that the

district court find that the of ficers were entitled to qualified

immunity and grant their summary judgment motio n. The district

court agreed with the magistrate judge.

Benjamin contends that the district court misrelied on

Leonard's version of the facts as presented in his affidavit

because the affidavit is factu ally and legally insufficient and

lacks credibility. Benjamin argues that the moving parties failed

to demonstrate the absence of a genuine issue of fact; therefore,

he was not required to provide additional affidavits and could11

point to his sworn complaint and the evidence already in the

record.

Leonard's affidavit stated the following with regard to the

use of force: "I instructed Officers Harvey and Busby to return

the inmate to his cell. While they were removing the inmate from

the security cell , the inmate became assaultive and attempted to

jerk away from the escorting officer, Harvey, Richard, CO

III. . . . [T]he inmate was restrained on the floor and a video

camera and leg restraints were called for." The affidavit

conflicted with Benjamin's detailed verifie d complaint and the

record of the extensive medical treatment Benjamin received after

the incident. S ee King v. Dogan

, 31 F.3d 344, 346 (5th Cir. 1994)

(holding that a verified complaint is competent summary judgment

evidence). The movants have not established that there is no

genuine issue for trial; therefore, the district c ourt erred in

granting summary j udgment on the excessive-force claim. S ee

Amburgey , 936 F.2d at 809.

D.

In his verified complaint, Benjamin alleged that Walton and

Perkins denied him food because Benjamin had filed grievances

against Walton. Prison officials may not retaliate against an

inmate for pursuing grievance claims. S ee Gibbs v. King

, 779 F.2d

1040, 1046 (5th Cir.), cert. denied

, 476 U.S. 1117 (1986); Jackson12

v. Cain , 864 F.2d 1235, 1248-49 (5th Cir. 1989). The movants did

not address Benjamin's claim of retaliation or present any evidence

to meet their initial burden of establishing that there was no

genuin e issue for trial. S ee Isquith v. Middle South Util.

, 847

F.2d 186, 198-99 (5th Cir.) (noting that the burden does not shift

to the nonmovant until the movant has successfully discharged its

initial burden), cert denied

, 488 U.S. 926 (1988). The district

court erred in granting summary judgment on the retaliation claim.

E.

Convicted prisoners are protected by the Eighth Amendment from

exposure to egregious phy sical conditions that deprive them of

basic human needs. R hodes v. Chapman

, 452 U.S. 337, 347 (1981).

Under the Eighth Amendment, an inmate must be protected " against

conditions of confinement which constitute health threats but not

against those which cause mere di scomfort or inconvenience."

Wilson v. Lynaugh, 878 F.2d 846, 849 (5th Cir.), cert. denied

, 493

U.S. 969 (1989). The prisoner must show that "the risk that the

prisoner complains of [is] so grave that it violates contemporary

standards of decency to expose anyone unwillingly to such a risk."

Helling v. McKinney , 509 U.S. 25, 36 (1993).

The magistrate judge acknowledged that the movants did not

address Benjamin's allegations that he was held in a cell for ten

days without clothing, blankets, sheets, etc., in violation of the13

Eighth Amendment. The magistrate judge determined that the cell

was climate controlled, Benjamin was not exposed to a health risk,

he suffered no inju ry, and the conditions caused mere discomfort

and inconvenience. None of the factors that led to the magistrate

judge's determination is in the record. The district court erred

in granting summary judgment on this issue.

F.

Benjamin argues that the district court erred in denying his

motion for appointment of counsel because he is uneducated and has

limited knowledge of the law. He contends that his case involves

multiple complex issues and that he was unable to amend his

complaint to included all of his claims.

A civil rights complainant has no absolute right to the

appointment of counsel. F reeze v. Griffith

, 849 F .2d

172, 175 (5th Cir. 1988); Ulmer v. Chancellor , 691 F.2d

209, 212 (5th Cir. 1982). In fact, the appointment of

counsel is unnecessary unless a case presents exceptional

circumstances. Ulmer , 691 F.2d at 212-213.

Among the factors we must consider in deciding

whether to appoint counsel are the complexity of the

issues and the ability of [Benjamin] to represent himself

adequately. See id . at 213.

Hulsey v. Texas , 929 F.2d 168, 172-73 (5th Cir. 1991).

Contrary to Benjamin's assertions, the facts of this case are

not complicated, and Benjamin has demonstrated an ability to

present the facts of his claim adequately. The court did not abuse

its discreti on in denying his motion for appointment of counsel.14

See Robbins v. Maggio , 750 F.2d 405, 413 (5th Cir. 1985).

G.

Benjamin contends that the district court erred in denying his

motion to amend his complaint, filed contemporaneously with his

objections to the magistrate judge's report and recommendation. He

argues that his amend ed complaint contained factual information

concerning the excessive-force, retaliation, and conditions-ofconfinement claims. Further, he contends that the new claims

concerning a failure to train and supervise and a policy of racial

disc rimination are plainly linked to the claims in his original

complaint.

"A party may amend the party's pleading once as a matter of

course at any time before a responsive pleading is served . . . ."

F ED

. R. C IV

. P. 15(a). Benjamin's motion to amend his complaint and

his amended complaint were filed after the magistrate judge prepared

his report. At the time Benjamin sought to amend, he had filed his

original complaint, and the defendants had filed a motion to

dismiss, which was converted to a motion for summary judgment.

Neither a motion to dismiss nor a motion for summary judgment is a

responsive pleading that "extinguishes a plaintiff's right to amend

a complaint." Zaidi v. Ehrlich , 732 F.2d 1218, 1219-20 (5th Cir.

1 984). Therefore, Benjamin could exercise his right to amend

automatically. Because Benjamin petitioned the court for leave to15

amend, the court should have granted the petition. See Zaidi , 732

F.2d at 1220.

IV.

The grant of summary judgment on the claims of deliberate

indifference to Benjamin's serious medical needs against Young and

Hester is AFFIRMED. Because the movants did not meet their burden

of establishing the absence of a genuine issue for trial, summary

judgment of the claims of excessive use of force, retaliation, and

unconstitutional conditions of confinement are VACATED and REMANDED

for further proceedings. Benjamin should be allowed to file an

amended complaint. Further, Benjamin's claims for equitable/injunctive relief should be dismissed as moot by the district court.

See Powell v. McCormack , 395 U.S. 486, 496 (1969). He is no longer

incarcerated at the Hughes Unit; therefore, he lacks a legally

cognizable interest in the outcome.