                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                   April 9, 2003

                                                         Charles R. Fulbruge III
                                                                 Clerk
                           No. 02-60743
                         Summary Calendar



                           LARRY BANKS,

                                              Plaintiff-Appellant,

                              versus

                    DOLPH BRYANT, Etc.; ET AL,

                                                         Defendants,

               ANTHONY JOHNSON, in his individual
              capacity as deputy of the Oktibbeha
          County Sheriff’s Department; ED BLASINGAME,
           in his official capacity as deputy of the
             Oktibbeha County Sheriff’s Department,

                                             Defendants-Appellees.

                      --------------------
          Appeal from the United States District Court
            for the Northern District of Mississippi
                      USDC No. 1:00-CV-106
                      --------------------

Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Larry Banks, now Mississippi prisoner # K0423, appeals the

summary-judgment dismissal of his 42 U.S.C. § 1983 civil rights

lawsuit alleging that Oktibbeha County, Mississippi, Deputy Sheriff

Anthony Johnson assaulted him without provocation, subjecting him


     *
      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this opinion should not be published and is not precedent except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.
to excessive force, and that Deputy Sheriff Ed Blasingame observed

the assault, failed to intervene, and failed to provide him with

medical care after he requested it.                 Banks argues that material

factual disputes existed which precluded summary judgment.

     This      court   reviews    a   district      court’s    grant   of   summary

judgment de novo, applying the same standard as would the district

court.    See Melton v. Teachers Ins. & Annuity Ass’n of Am., 114

F.3d 557, 559 (5th Cir. 1997).             Summary judgment is proper where

the pleadings and summary judgment evidence present no genuine

issue of material fact and the moving party is entitled to a

judgment as a matter of law.            See FED. R. CIV. P. 56(c); Celotex

Corp. v. Catrett, 477 U.S. 317, 322 (1986).                       The court may

not weigh the evidence nor make credibility determinations.                       See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

     Banks is correct that material factual disputes existed which

precluded summary judgment.             The deputies submitted competent

summary-judgment evidence to show that the force employed by Deputy

Johnson was provoked by Banks’ refusal to return to his holding

cell,    was    applied   to     restore       order,   was   reasonable    and   in

proportion to the need, and did not result in any injury to Banks.

Their summary-judgment evidence also tended to show that Banks

neither required nor requested medical treatment.                 Banks responded

to the summary-judgment motion with only conclusional allegations,

which, standing alone, would be insufficient to defeat summary

judgment.      See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th

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Cir. 2000). However, as part of their summary-judgment motion, the

deputies submitted a copy of Banks’ sworn deposition testimony,

wherein Banks asserted that Deputy Johnson beat, shoved, and choked

him without provocation; that the assault resulted in what felt

like a broken finger, bleeding abrasions to the head, bruised ribs,

and back pain; and that Deputy Blasingame observed the assault,

failed to intervene, and refused to provide him with medical care

when he requested it.    The deposition testimony was competent

summary-judgment evidence.    See Nissho-Iwai American Corp. v.

Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).

     If Banks’ allegations as stated in the deposition are true,

they are sufficient to state a claim for both excessive force and

the denial of medical care, in violation of his constitutional

rights. See Williams v. Bramer, 180 F.3d 699, 703-04, clarified on

reh’g, 186 F.3d 633, 634 (5th Cir. 1999); Eason v. Holt, 73 F.3d

600, 601 (5th Cir. 1996); see also Farmer v. Brennan, 511 U.S. 825,

837 (1994); Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).

In holding that Banks sustained at most de minimis injuries not

requiring medical care, that Banks had not in fact requested any

medical treatment, and that any force used by Deputy Johnson was

used in good-faith effort to maintain order in the jail, not

maliciously or sadistically to cause Banks harm, the district court

credited the deputies’ sworn factual allegations and rejected

Banks’ sworn deposition testimony.   This was error at the summary-

judgment stage.    See Anderson, 477 U.S. at 248.      Because the

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material facts underlying Banks’ claims are in dispute and because

the   dispute   cannot   be   resolved   without   making   a   credibility

determination, this court must vacate the district court’s judgment

and remand the case for further proceedings.           See id.; see also

Celotex, 477 U.S. at 322; FED. R. CIV. P. 56(c).

      VACATED AND REMANDED.




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