* 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that this opinion should not be published and is not precedent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.

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IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-50214

Summary Calendar

 

JIMMY POTTS,

Plaintiff-Appellant,

versus

MARK A. HILL, Etc.; ET AL.,

Defendants,

JON L. FREEMAN, Field Rider,

Correctional Officer 3, Hughes Unit,

Defendant-Appellee.

____________________________________________

Appeal from the United States District Court

for the Western District of Texas

USDC No. W-96-CV-449

____________________________________________

May 25, 1999

Before DAVIS, DUHÉ and PARKER, Circuit Judges.

PER CURIAM:*

Jimmy Potts, Texas inmate # 549145, appeals the district

court’s summary-judgment dismissal of his civil rights complaint.

Potts contends that Jon L. Freeman used unnecessary force against
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him, causing him an injury to his mouth. Potts moves for

appointment of counsel. The motion is DENIED. 

We review “the grant of a summary judgment motion de novo,

using the same criteria used by the district court." Fraire v.

City of Arlington, 957 F.2d 1268, 1273 (5th Cir. 1992). To obtain

a summary judgment, the moving party must demonstrate that there is no genuine issue of

material fact and that he is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). If

the moving party makes the required showing, the burden shifts to the nonmovant to set forth, with

competent summary-judgment evidence, specific facts showing the existence of a genuine issue for

trial. See Fed. R. Civ. P. 56(e).

When a prisoner alleges that a prison official used force in

violation of the Eighth Amendment, the core judicial inquiry is

"whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm."

Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). 

The district court, relying on Siglar v. Hightower, 112 F.3d

191 (5th Cir. 1997), concluded that Potts did not have the kind of

injury that warranted Eighth Amendment protection. A successful

Eighth Amendment excessive force claim requires that a prisoner

have suffered a more than de minimis physical injury from the

excessive force. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.

1999). However, the inquiry in a use-of-force claim does not end

with an analysis of the injury that was suffered. See Baldwin v.

Stalder, 137 F.3d 836, 839 (5th Cir. 1998)(“the absence of serious

injury is quite relevant to an excessive force inquiry, but does

not alone preclude relief.”)(citing Hudson, 503 U.S. at 7). The
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core inquiry is "whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically

to cause harm." Hudson, 503 U.S. at 6-7. We have stated that it

is arguable that “Siglar leaves open the possibility that a

physical injury which is only de minimis may nevertheless suffice

for purposes of the Eighth Amendment . . . if the force used is of

the kind [that is] repugnant to the conscience of mankind.” Gomez,

163 F.3d at 924 n.4 (internal quotations omitted). 

Potts’s verified medical records, attached to Freeman’s motion

for summary judgment, document the “use of force,” which resulted

in a nonbleeding cut on the inside of Potts’s lip. Although

Potts’s pleadings are not a model of clarity, it appears that he

complains that Freeman struck Potts’s mouth, making his mouth too

sore to wear his dentures for three weeks. Further, Potts’s

complaint establishes that the injury occurred during an

altercation between Potts and Freeman for which Potts received a

prison disciplinary conviction. 

We agree that Freeman demonstrated that there is no genuine issue of materialfact,

based on the de minimis nature of the injury and the disciplinary action against Potts arising out of

the incident. See Fed. R. Civ. P. 56(c). The burden then shifted to Potts to set forth, with competent

summary-judgment evidence, specific facts showing the existence of a genuine issue for trial. Potts

failed to meet his burden, even after the magistrate judge identified this deficiency in the report and

recommendation and the district court granted Potts an extension of time to file objections. 

We therefore affirm the district court’s grant of summary

judgment in favor of Freeman.

AFFIRMED; MOTION DENIED.
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