     Case: 10-60040 Document: 00511381116 Page: 1 Date Filed: 02/14/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                         February 14, 2011

                                     No. 10-60040                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TOMMY WHITE, SR.,

                                                  Plaintiff - Appellant,
v.

CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF
CORRECTIONS; RONALD KING, Superintendent; HUBERT DAVIS; BRENDA
SIMS; SHELIA HILL; CHIQUITA BROWN; DEBRA PLATT; RITA BONNER;
PATSY MOORE; CINDY BEST; SERGEANT MONICA MALONE; WARDEN
JOHNNY DENMARK; HOWARD EVERETT,

                                                  Defendants - Appellees.




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:08-CV-111



Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Tommy White, Sr., Mississippi prisoner # M1572, appeals from the district
court’s dismissal with prejudice of his civil rights lawsuit, filed under 42 U.S.C.
§ 1983, against various prison officials. White’s first claim, alleging the use of


       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
     Case: 10-60040 Document: 00511381116 Page: 2 Date Filed: 02/14/2011



                                      No. 10-60040

excessive force against him during a prison riot, was dismissed as frivolous
pursuant to 28 U.S.C. § 1915(e)(2). His second claim, alleging the destruction
of various items of personal property (including a family bible and legal papers)
by prison guards in the wake of a prison riot, was dismissed after the district
court granted summary judgment for the defendants. We now AFFIRM the
district’s court judgment with respect to both of White’s claims. Moreover,
White’s motion for appointment of counsel is DENIED.1
       We review the district court’s dismissal of White’s excessive force claim as
frivolous for abuse of discretion. “[W]henever prison officials stand accused of
using excessive physical force in violation of the Cruel and Unusual
Punishments Clause, 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, 5-7 (1992). As the
Supreme Court has held, “[t]he Eighth Amendment’s prohibition of ‘cruel and
unusual’ punishments necessarily excludes from constitutional recognition de
minumus uses of physical force.”          Id. at 9. What constitutes an injury for
purposes of an excessive force claim is dependent upon the context in which it
arose. Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999).
       Here, White alleges that during a prison riot, prison officials removed all
inmates from their cells, including White himself, conducted a strip-search of
the inmates, and forced them to lay down on hot concrete for over an hour. As
a result, White claims his elbows were bruised and bleeding and he had a red
mark on his head. Those relatively minimal injuries, as prison officials worked
to restore discipline after a prison disturbance, do not rise to the level to justify


       1
          Appointment of counsel is not required in civil cases except in exceptional
circumstances, which depend on the nature and complexity of the case and the abilities of the
litigant pursuing the case. Cooper v. Sheriff, Lubbock County, Tex., 929 F.3d 1078, 1084 (5th
Cir. 1991). This case does not present complex issues, and White has shown himself capable
of pursuing his claims. Therefore, his motion for appointment of counsel is denied.

                                             2
    Case: 10-60040 Document: 00511381116 Page: 3 Date Filed: 02/14/2011



                                  No. 10-60040

a claim under the Eighth Amendment. See Baldwin v. Stalder, 137 F.3d 836,
840 (5th Cir. 1998) (holding that the fact finder in an excessive force case must
bear in mind that prison officials “may [have] to act quickly and decisively” and
are therefore entitled to “wide-ranging deference”).     Accordingly, the district
court did not abuse its discretion in dismissing White’s excessive force claim.
See Black v. Warren, 134 F3d. 732, 733-34 (5th Cir. 1998).
      We also find no error in the district court’s grant of summary judgment on
White’s property claim, which we review de novo. Dillon v. Rogers, 596 F.3d 260,
266 (5th Cir. 2010). Under the Supreme Court’s well-settled Parratt/Hudson
line of cases, “a deprivation of a constitutionally protected property interest
caused by a state employee’s random, unauthorized conduct does not give rise
to a Section 1983 procedural due process claim, unless the State fails to provide
an adequate post-deprivation remedy.” Allen v. Thomas, 388 F.3d 147, 149 (5th
Cir. 2004); See also Parratt v. Taylor, 451 U.S 527, 541-44 (1981); Hudson v.
Palmer, 468 U.S. 517, 533 (1984). The burden is on the complainant to show
that the state’s post-deprivation remedy is not adequate. Myers v. Klevenhagen,
97 F.3d 91, 94 (5th Cir. 1996).
      White did not allege that he was deprived of his property in accordance
with any prison policy, practice, or custom, or that the deprivations of his
property were in any way authorized by the prison. Nor has he shown that
summary judgment was inappropriate because the district court relied on
credibility determinations. Rather, White’s chief allegation is that certain prison
officials maliciously destroyed his property in contravention of prison policy.
That brings his case directly within the Parratt/Hudson rubric. White did not
show that Mississippi fails to provide an adequate post-deprivation remedy for
his claim.     To the contrary, this court has held that Mississippi’s
post-deprivation remedies for civil litigants in similar circumstances satisfy due
process. Nickens v. Melton, 185 (5th Cir. 1994). Even if, as White claims, he had

                                        3
    Case: 10-60040 Document: 00511381116 Page: 4 Date Filed: 02/14/2011



                                 No. 10-60040

no access to a replevin action under Mississippi law because his possessions were
destroyed rather than simply taken, the district court properly observed that he
had at least two other forms of adequate post-deprivation remedies available to
him. See Miss. Code. Ann. § §11-38-1 (claim and delivery); Wilson v. General
Motors Acceptance Corp., 883 So. 2d 56, 68-69 (Miss. 2004) (setting forth the
elements for a conversion claim).
      The judgment of the district court is AFFIRMED. MOTION FOR
APPOINTMENT OF COUNSEL DENIED.




                                       4
