* District Judge of the Western District of Texas, sitting

by designation.

 

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that this opinion should not be published and is not precedent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

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-41409

_______________________

SONNY WILSON,

Plaintiff-Appellant,

versus

LINDA G. DOWDON, Correctional Officer, Coffield Unit,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Eastern District of Texas

(6:97-CV-244)

_________________________________________________________________

November 24, 1999

Before JONES and DENNIS, Circuit Judges and PRADO*, District Judge.

PER CURIAM:*

Sonny Wilson (“Wilson”), Texas prisoner #684871, argues

that the district court abused its discretion in dismissing his 42

U.S.C. § 1983 claim as frivolous and for failure to state a claim

upon which relief can be granted. Wilson argues that the district

court erred in dismissing his excessive force claim based on 

controverted prison medical records and without considering the

Officer Linda G. DOWDON’s (“Officer Dowdon”) culpable intent in
2

employing the use of force. Our review of the record and

applicable case law leads us to affirm in part, vacate in part, and

remand to the district court.

Briefly, the facts giving rise to Wilson’s claim occurred

while he was placed in “super” segregation at the correctional

facility, a form of solitary confinement. Under this type of

confinement, food is served to inmates on trays which are handed to

them through metal slots in metal doors. When Officer Dowdon

delivered Wilson’s food, he immediately complained about the food

and asked to see a supervisor. In response, he alleges that

Officer Dowdon slammed the metal slot closed on his hand and used

the full weight of her body to crush his hand between the door and

the slot.

Procedurally, this case began when Wilson filed suit

against Officer Dowdon alleging violations of the Eighth Amendment

and claiming that Officer Dowdon took these actions in retaliation

for previous complaints Wilson had made against her. A United

States Magistrate Judge conducted an evidentiary hearing in accord

with Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) and, over

Wilson’s objections, recommended the suit be dismissed as frivolous

and for failure to state a claim upon which relief could be

granted. The district court adopted this recommendation and Wilson

timely appealed.

We have reviewed the record, including the transcript of

the Spears hearing and Wilson’s brief, and have determined that the

district court prematurely dismissed the excessive force claim
3

without sufficiently developing the record with respect to all the

factors relevant to the resolution of the claim. See Hudson v.

McMillian, 503 U.S. 1, 7 (1992); Baldwin v. Stalder, 137 F.3d 836,

839 (5th Cir. 1998). Specifically, under Hudson, a district court

should follow three steps: (1) determine whether excessive force

was used; (2) if so, resolve whether the resulting injury was de

minimis; (3) assuming the court has reached the first two parts of

the test, assess whether the use of force falls into a category of

behavior which is repugnant to the conscience of humankind. See

Hudson, 503 U.S. at 9-10. In making these determinations, we

remind the district court that “the amount of force that is

constitutionally permissible . . . must be judged by the context in

which that force is deployed.” Ikerd v. Blair, 101 F.3d 430, 434

(5th Cir. 1996).

In this case, the district court began and ended its

analysis upon a finding that the use of force was de minimis. We

remand for a determination as to steps one and three listed above.

We express no opinion on whether the facts of this case satisfy

these steps. Accordingly, we vacate and remand.

The district court also dismissed Wilson’s retaliation

claim on the basis that he had failed to exhaust his administrative

remedies. Wilson has not addressed this issue on appeal;

therefore, he is deemed to have abandoned his retaliation claim.

See Brinkman v. Dallas County Deputy Sheriff Abner, 813 F.2d 744,

748 (5th Cir. 1987). We affirm the district court on this issue.
4

AFFIRMED as to the claim of retaliation; VACATED and

REMANDED for further consideration of the excessive force claim.