* 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

September 5, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20687

DALE KEITH PAYNE,

Plaintiff – Appellant,

v.

JIMMY PARNELL, Correctional Officer; TERRY PICKETT, 

Captain; BRIAN BUCK, Captain; PRISCILLA DALY,

Grievance Officer; RICHARD THALER, Warden,

Defendants – Appellees.

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. H-03-4294

Before KING, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Dale Keith Payne, Texas prisoner #594370, filed this civil rights action

under 42 U.S.C. § 1983 against prison officers Jimmy Parnell, Terry Pickett,

Brian Buck, Priscilla Daly, and Richard Thaler. Payne claimed that Parnell

violated the Eighth Amendment by subjecting him to excessive force with a
No. 05-20687

1 Payne named Daly as a defendant in his initial complaint, but a summons was

apparently never issued for her.

2

cattle prod and threatening him with a knife, and that Pickett, Buck, Daly,1 and

Thaler did so by failing to supervise Parnell, protect Payne from Parnell, and

investigate the matter adequately. The district court granted summary

judgment in favor of all defendants, and Payne now appeals. As to the excessive

force claim against Parnell based on the cattle prod incident, we VACATE the

summary judgment dismissal and REMAND for further proceedings; in all other

respects we AFFIRM. 

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case arises out of an altercation between Texas inmate Dale Keith

Payne and corrections officer Jimmy Parnell. In October of 2002, Payne was

working at his prison job at the back gate of the Estelle Unit. A horticulture

truck had just entered the back gate area, and Payne raised the truck’s hood to

allow it to be to be searched by a guard. While Payne was in this position

Parnell approached him from the rear and, without provocation, shocked him in

the back with a cattle prod that he had found in the truck’s cab. The shock from

the cattle prod produced a painful reaction in Payne, causing him to “jump[] and

holler[],” and left a mark on Payne’s back. Parnell then chased Payne around

a nearby office building in an attempt to shock him again. Payne sought refuge

in a bathroom, at which point Parnell attempted to shock him through the door

of the bathroom by using the door handle to transmit the electricity from the

cattle prod. After a later incident in which Parnell allegedly threatened Payne

with a knife, Payne reported both incidents to Terry Pickett, a security captain.

Payne also filed a grievance against Parnell. Defendants Brian Buck and

Richard Thaler were involved in the grievance process as security captain and

warden, respectively. 
No. 05-20687

3

The matter was subsequently referred to the Texas Department of

Criminal Justice (TDCJ) Office of the Inspector General (OIG), which is

independent of the normal TDCJ chain of command. When first interviewed by

an OIG investigator, Parnell denied that he had shocked Payne with a cattle

prod at all. Payne and another inmate who witnessed the incident were then

subjected to polygraph examinations, which they both passed. The investigator

also obtained a statement from a guard who had witnessed the incident and

confirmed that Parnell touched Payne with a cattle prod. After being informed

ofthese developments,Parnell admitted that Payne’s allegations concerning the

cattle prod were true. In a written statement, he explained that he “did touch

offender Payne with [a cattle prod] in a joking manner and did not know it would

shock him.” Parnell also admitted to having a knife in the back gate area, but

he said he never threatened Payne with it. The OIG report concluded that in

shocking Payne with the cattle prod, Parnell committed “reckless conduct” in

violation of a prison personnel rule. Parnell was suspended for two days without

pay and placed on probation for ninety days. The investigation found

insufficient evidence to support Payne’s allegation that Parnell threatened him

with a knife. 

Payne then brought this § 1983 suit, claiming that Parnell’s actions and

threats constituted the use of excessive force against him in violation of the

Eighth Amendment. Pickett, Buck, and Thaler were joined as defendants on the

theory that they failed to supervise Parnell, protect Payne from Parnell, and

investigate the grievance againstParnell adequately. The district court granted

summary judgment in favor of the defendants and dismissed the case. Payne

appeals the grant of summary judgment, and also argues that the district court

abused its discretion in denying his request for appointed counsel, refusing to
No. 05-20687

2 Although Payne refers in passing to his claim that Parnell threatened him with a

knife, his brief contains no argument relating to this issue. We do not construe his brief as

pursuing this claim on appeal. See Yohey v. Collins, 985 F.2d 222, 224–24 (5th Cir. 1993)

(although pro se briefs are liberally construed, arguments must be briefed to be preserved for

appeal). 

4

allow him to amend his complaint, and failing to conduct a hearing pursuant to

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

II. DISCUSSION

A. Standard of Review

We review a grant of summary judgment de novo, viewing all evidence in

the light most favorable to the nonmoving party and drawing all reasonable

inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234

F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence

reflects no genuine issues of material fact and the non-movant is entitled to

judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue

of material fact exists ‘if the evidence is such that a reasonable jury could return

a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)).

B. Payne’s Excessive Force Claim Against Parnell

“[T]he settled rule [is] that ‘the unnecessary and wanton infliction of

pain . . . constitutes cruel and unusual punishment forbidden by the Eighth

Amendment.’” Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986)). In the context of an allegation of the use of

excessive force by a prison official, “the core judicial inquiry is . . . whether force

was applied in a good-faith effortto maintain or restore discipline, or maliciously

and sadistically to cause harm.” Id. at 7. “In determining whether the use of

force [by a prison guard] was wanton and unnecessary,” the court considers “the

extent of [the] injury suffered,” “the need for [the] application of force, the
No. 05-20687

5

relationship between that need and the amount of force used, the threat

reasonably perceived by the responsible officials, and any efforts made to temper

the severity of a forceful response.” Id. (citing Whitley, 475 U.S. at 321) (internal

quotation marks omitted). 

The Supreme Court has recognized that the Eighth Amendment includes

an “objective component”: in considering a prisoner’s claim, the court must ask

“if the alleged wrongdoing was objectively ‘harmful enough’ to establish a

constitutional violation.” Id. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298

(1991)). The objective component of the Eighth Amendment is “contextual,” id.;

whereas a conditions-of-confinement claim requires “extreme deprivations” to be

cognizable, in the excessive-force context, “[w]hen prison officials maliciously and

sadistically use force to cause harm,” the Eighth Amendment is violated

“whether or not significant injury is evident.” Id. at 9. “That is not to say that

every malevolent touch by a prison guard gives rise to a federal cause of action.”

Id. “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments

necessarily excludes from constitutional recognition de minimis uses of physical

force, provided that the use of force is not of a sort ‘repugnant to the conscience

of mankind.’” Id. at 9–10 (quoting Whitley, 475 U.S. at 327). 

We first consider whether Payne has demonstrated the existence of a fact

issue on the question of whether Parnell applied the electric shock from the

cattle prod “in a good-faith effortto maintain or restore discipline, or maliciously

and sadistically to cause harm.” See id. at 7. The district court concluded that

Parnell was entitled to summary judgment because it determined that he was

acting “jokingly,” or in “horseplay,” and did not know the cattle prod was

charged. We conclude, however, that a reasonable jury could determine that

Parnell acted maliciously and sadistically in unnecessarily and wantonly

inflicting pain on Payne.
No. 05-20687

6

When the cattle prod incident occurred, Payne was merely working at his

prison job; there is no allegation that he caused any disruption or in any way

violated a prison rule. He was facing away from Parnell and, in the process of

raising and supporting the truck’s hood, was in a relatively vulnerable position.

He did nothing to provoke Parnell’s actions, and there is no evidence that

Parnell had any reason to reasonably perceive a threat from Payne.

Consequently, a rational jury could find that there was no need for the

application of any force in this situation, much less the amount of force actually

administered, an electric shock from a cattle prod. 

Furthermore, assuming arguendo that Payne may not proceed if Parnell

was acting “jokingly,” or in “horseplay,” and did not know the cattle prod was

charged when he delivered the electric shock, there is sufficient circumstantial

evidence in the record from which a reasonable jury could disbelieve this

explanation. After Parnell delivered the initial shock, he chased Payne around

a building and into a bathroom in an effort to shock him further. Additionally,

Payne submitted an affidavitfrom another inmate, who was also interviewed by

the OIG investigator and given a polygraph examination, that detailed other

occasions when Parnell had struck Payne unnecessarily. This evidence

substantiates Payne’s allegations that he had been subjected to a history of

abuse and harassment at the hands of Parnell prior to the cattle prod incident,

and supports an inference that Parnell intended to harm Payne. Finally, Parnell

initially lied about the incident by denying that it had ever occurred; only when

informed that another guard had witnessed it and that Payne and the other

inmate had passed polygraphs did Parnell tell the investigator that he had in

fact shocked Payne, but “only in a joking manner.” On this record, a rational

jury could determine that in shocking Payne, Parnell acted maliciously and

sadistically to cause harm.
No. 05-20687

3 We have also recognized the possibility under Hudson that even a de minimis physical

injury may be sufficient for Eighth Amendment purposes if the force used is “of a sort

repugnant to the conscience of mankind.” See Gomez, 163 F.3d at 324 n.4. Since we conclude

that the use of force here was not de minimis, we need not resolve the question of whether the

use of a cattle prod on a prisoner is force “of a sort repugnant to the conscience of mankind.”

7

The more difficultissue is whether the alleged wrongdoing in this case was

objectively “harmful enough” to establish a constitutional violation. See Hudson,

503 U.S. at 8. To support an excessive force claim, a prisoner “must have

suffered from the excessive force a more than de minimis physical injury, but

there is no categorical requirement that the physical injury be significant,

serious, or more than minor.”3 Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.

1999). “In determining whether an injury caused by excessive force is more than

de minimis, we look to the context in which that force was deployed.” Williams

v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). “[T]he amount of injury necessary

to satisfy our requirement of ‘some injury’ and establish a constitutional

violation is directly related to the amount of force that is constitutionally

permissible under the circumstances.” Id. at 703–04 (quoting Ikerd v. Blair, 101

F.3d 430, 434 (5th Cir. 1996)). Payne received an electric shock from a cattle

prod, which caused an immediate sensation of pain and left a mark on his back.

The district court determined that his injury from the cattle prod was de

minimis. We disagree.

Relying on Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), the

defendants argue that Payne can not show a physical injury sufficientto support

his excessive force claim. In Siglar, the prisoner was stopped in the hall of his

prison unit while returning from breakfast. 112 F.3d at 193. The guard found

a biscuit in the prisoner’s jacket pocket and called for backup. Id. The

responding guard, “[w]ithout provocation, . . . twisted Siglar’s arm behind his

back and twisted Siglar’s ear.” Id. “Siglar’s ear was bruised and sore for three

days but he did not seek or receive medical treatment for any physical injury
No. 05-20687

4 The claim in Williams was based on the Fourth Amendment, but the analysis in that

case is relevant here because a claim of excessive force by a law enforcement officer is analyzed

under the same standard regardless of whether it arises under the Fourth Amendment or the

Eighth Amendment. See Ikerd, 101 F.3d at 434 n.9 (“[A]ny force exerted by a law enforcement

officer that would be objectively reasonable under [the Fourth Amendment] would also be de

minimis under Hudson. Similarly, any force that would be objectively unreasonable under [the

Fourth Amendment] would not fall within the de minimis language in Hudson.”).

8

resulting from the incident.” Id. We affirmed the dismissal of his complaint,

concluding that he had not suffered a “physical injury” under the Prison

Litigation Reform Act, 42 U.S.C. § 1997e(e), because his injury was de minimis

under the Eighth Amendment. Id. at 193–94. The defendants contend that

Payne’s injuries from the cattle prod shock likewise did not result in long-term

damage requiring medical treatment. It is clear, however, that the lack of any

long-term damage is not dispositive on the question of whether Payne’s injury

was de minimis. In Gomez, for example, in concluding that a prisoner’s injury

was not de minimis, we distinguished Siglar not only on the extent of the

physical injury that actually resulted, but also on the fact that the “application

of force” was “of a character far [more] intense and [more] calculated to produce

real physical harm,” Gomez, 163 F.3d at 924, as it was here.

Moreover, we have made it clear that the amount of injury required “is

directly related to the amount of force that is constitutionally permissible under

the circumstances.” Williams, 180F.3d at 704 (internal citations and quotations

omitted). In Williams, an individual detained by police officers brought an

excessive force claim against an officer who allegedly choked him twice, once in

the course of a search of the plaintiff’s mouth and once shortly thereafter in

response to his complaining about the first choking.4Id. at 703. The plaintiff’s

alleged injuries from each choking were identical: “fleeting dizziness, temporary

loss of breath and coughing.” Id. at 704. Since “[i]n determining whether an

injury caused by excessive force is more than de minimis, we look to the context

in which the force was deployed,”id. at 703, we evaluated each injury separately.
No. 05-20687

9

We determined that the injuries resulting from the first choking were not

constitutionally cognizable because they occurred during a search of the

plaintiff’s mouth for drugs. Id. at 704. With respect to the second choking,

however, identical injuries were more than de minimis, because the second

choking “was motivated entirely by malice” and because the officer was not

“legitimately exercising force in the performance of his duties as an officer.” Id.

We think the facts of Payne’s case are more akin to Williams than Siglar.

The application of the electric shock from the cattle prod was at least as serious

as the choking that caused “fleeting dizziness, temporary loss of breath and

coughing” in Williams. Additionally, unlike in Siglar, where the prisoner was

found with contraband,there is no evidence that Payne was violating any prison

rule or that any use of force was necessary. We conclude that the deliberate,

unnecessary application of an electric shock from a cattle prod in this case

resulted in more than de minimis injuries. Cf. Brown v. Hughes, 894 F.2d 1533,

1538 (11th Cir. 1990) (“Deliberately inflicted pain, as with an electric cattle prod,

does not become unimportant and unactionable under the eighth amendment

simply because the pain produced is only momentary.”).

C. Payne’s Claims Against Pickett, Buck, and Thaler

The district court granted summary judgment againstPayne on his claims

that Pickett, Buck, and Thaler failed to supervise Parnell, protect Payne from

Parnell, and investigate the matter adequately. We conclude that the grant of

summary judgment on these claims was proper.

To hold a supervisory official liable for the acts of a subordinate, Payne

must show that “(1) the supervisor either failed to supervise or train the

subordinate official; (2) a causal link exists between the failure to train or

supervise and the violation of the plaintiff’s rights; and (3) the failure to train or

supervise amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d

908, 911–12 (5th Cir. 1998). To state a failure to protect claim under § 1983,
No. 05-20687

5

Insofar as Payne asserts an alleged violation of due process in the prison grievance

process, the district court did not err in determining that Payne had no legal interest in having

the dispute resolved to his satisfaction. See Geiger v. Jowers, 404 F.3d 471, 373–74 (5th Cir.

2005). The record also indicates that an investigation was conducted, and that Parnell was

subsequently disciplined.

10

Payne must show that he is incarcerated under conditions posing a substantial

risk of serious harm and that prison officials were deliberately indifferent to his

need for protection. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). For an

official to act with deliberate indifference for purposes of either claim, he “must

both be aware of facts from which the inference could be drawn that substantial

risk of serious harm exists, and he must also draw the inference.” Farmer v.

Brennan, 511 U.S. 825, 837 (1994).

The record in this case contains affidavits from Pickett, Buck, and Thaler

stating that they were unaware of any substantial risk posed to Payne by

Parnell prior to the incidents in question, and that once informed they took

appropriate action, which ultimately led to the investigation conducted by the

OIG. Payne has not put forward any evidence to controvert the defendants’

affidavits; indeed, his own pleadings indicate that he did not inform prison

officials of his problems with Parnell until after the second incident. Summary

judgment was therefore appropriate, as no genuine issue of material fact

relating to the alleged deliberate indifference of Pickett, Buck, and Thaler is

evident from the record.5

D. Other Issues

Payne also argues that the district court abused its discretion in denying

his request for appointed counsel, failing to allow him to amend his complaint,

and refusing to conduct a Spears hearing.

A court is not required to appoint counsel to an indigent plaintiff in a

§ 1983 case unless there are exceptional circumstances. Ulmer v. Chancellor,

691 F.2d 209, 212 (5th Cir. 1982). Factors to consider in ruling on a request for
No. 05-20687

6 We express no opinion regarding whether on remand Payne should have counsel

appointed to assist him in further pursuing his § 1983 claim relating to the cattle prod

incident.

11

appointment of counsel include: (1) the type and complexity of the case; (2) the

indigent’s ability to adequately investigate and present the case; (3) the presence

of evidence which largely consists of conflicting testimony so as to require skill

in presentation of evidence and cross-examination; and (4) the likelihood that

appointment of counsel will benefit the parties and the court. Parker v.

Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); see Ulmer, 691 F.2d at 213.

Although the record does contain conflicting testimony as to Parnell’s intentions

in shocking Payne, at the summary judgment stage concerns about effective

cross-examination have not yet been implicated, and as the facts of this case are

not unusually complex, Payne’s presentation has to this point been adequate.

The district court thus did not abuse its discretion in denying appointment of

counsel.6

With regard to the argument that the district court abused its discretion

in not allowing an amendment to his complaint prior to the filing of the

defendants’ motion for summary judgment, Payne has failed to show any error;

the record contains no indication that he attempted to amend his complaint, or

that any amendment was improperly refused.

Finally, Payne argues that the district court should have conducted a

Spears hearing, which is a device that allows the court to remedy any factual or

legal inadequacies in a prisoner’s pleadings. See Eason v. Thaler, 14 F.3d 8, 9

(5th Cir. 1994). To determine whether the district court abused its discretion in

failing to hold a Spears hearing, we first inquire if any insufficiencies in Payne’s

allegations might have been remedied with the opportunity for additional factual

development. Id. Payne’s initial complaint adequately outlined the factual

bases for his claims, and he also had an opportunity to respond to the
No. 05-20687

12

defendants’ motion for summary judgment. On appeal he has not identified any

additional facts that he would have presented at a Spears hearing; the

averments in his brief and reply brief largely mirror information already

contained within the record that was available at summary judgment. The

district court did not abuse its discretion in failing to hold a Spears hearing.

III. Conclusion

We VACATE the grant of summary judgment with respect to Payne’s

excessive force claim against Parnell based on the cattle prod incident and

REMAND for further proceedings; in all other respects the judgment of the

district court is AFFIRMED.