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that this opinion should not be published and is not precedent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

Fifth Circuit

FILED

February 26, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-41596

Summary Calendar

 

PIERRE L. DAVIS,

Plaintiff-AppellantCross-Appellee,

versus

DEWAYNE CANNON, Warden at Bowie County Correctional Center; MARK

STEELE, Correctional Officer at Bowie County Correctional Center;

T. REED, Colonel, Correctional Officer at Bowie Correctional

Center; MICHAEL S. CAMPBELL, Correctional Officer at Bowie

Correctional Center,

Defendants-AppelleesCross-Appellants.

--------------------

Appeals from the United States District Court

for the Eastern District of Texas

USDC No. 5:00-CV-104

--------------------

Before JOLLY, WIENER, and PICKERING, Circuit Judges

PER CURIAM:*

Pierre L. Davis, Wisconsin prisoner No. 271136, appeals the

district court’s judgment granting Defendants Dewayne Cannon,

Mark Steele, T. Reed, and Michael S. Campbell’s motion for

summary judgment, denying his motion for summary judgment,
No. 02-41596

-2-

dismissing his 42 U.S.C. § 1983 claims with prejudice, and

dismissing his state law claims without prejudice. 

Davis contends that genuine issues of material fact exist as

to whether Steele violated his Eighth Amendment right to be free

from cruel and unusual punishment when he sprayed him with a

chemical agent. Davis has failed to show any genuine issue of

material fact that Steele sprayed him with a chemical agent

maliciously or sadistically to cause him harm rather than in a

good faith effort to maintain or restore discipline, and not . 

See Baldwin v. Stalder, 137 F.3d 836, 840-41 (5th Cir. 1998). 

Therefore, this claim is without merit. 

Davis contends that Reed and Campbell violated his Eighth

Amendment right when they failed to intervene and protect him

from Steele’s excessive use of force. As Steele’s actions did

not constitute excessive force, Reed and Campbell are not liable

for failing to intervene and protect Davis. Cf. Hale v. Townley,

45 F.3d 914, 919 (5th Cir. 1995). 

Davis contends that Steele, Reed, and Campbell used

excessive force when they forcefully threw him on the ground

after Steele sprayed him with a chemical agent. Defendants’

actions were a continuation of their good faith effort to

maintain or restore discipline following Davis’s repeated refusal

to obey Steele’s orders. Further, Davis did not allege any

physical injury as a result of being thrown to the ground. 

Accordingly, this claim is without merit. See Baldwin, 137 F.3d
No. 02-41596

-3-

at 840-41; Siglar v. Hightower, 112 F. 3d 191, 193 (5th Cir.

1997).

Davis contends that genuine issues of material fact exist as

to whether Steele, Reed, and Campbell’s search of his cell

amounted to calculated harassment unrelated to prison needs in

violation of the Eighth Amendment. Davis’s conclusional

allegation that Defendants searched his cell because he was vocal

and filed many grievances is insufficient to defeat summary

judgment. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir.

1995). 

Davis contends that genuine issues of fact exist as to

whether the defendants violated his Eighth Amendment rights when

they subjected him to hazardous conditions and substances by

returning him to the same cell where the chemical agent remained

in the air. Davis has failed to show any genuine issue of

material fact that the exposure was sufficiently serious or that

the defendants acted with deliberate indifference to his health

or safety. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). 

Davis does not specifically address the district court’s

decline to exercise supplemental jurisdiction over his state law

claims. As he failed to brief this issue, he has abandoned any

argument relating to the district court’s dismissal of his state

law claims without prejudice. See Yohey v. Collins, 985 F.2d

222, 224-25 (5th Cir. 1993). 
No. 02-41596

-4-

Accordingly, the district court’s judgment granting the

defendants’ motion for summary judgment, denying Plaintiff’s

motion for summary judgment, dismissing Plaintiff’s 42 U.S.C. §

1983 claims with prejudice, and dismissing his state law claims

without prejudice is AFFIRMED.