                 UNITED STATES COURT OF APPEALS
                      For the Fifth Circuit



                          No. 95-20478
                        Summary Calendar


                          JAMES CARTER,

                                               Plaintiff-Appellant,

                             VERSUS

                     JAMES A. LYNAUGH, ET AL

                                                         Defendants,

         SAM PALASOTA; PATRICK CHRISTIAN; ARMANDO CANO,

                                               Defendants-Appellees.



          Appeal from the United States District Court
               For the Southern District of Texas
                         (CA-H-90-3562)

                          May 14, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:1

     Appellant, a state prisoner, brought a civil rights action

claiming unconstitutional use of force by several prison guards.
The district court granted summary judgment on qualified immunity

grounds in favor of defendants.   Finding that the district court

determined issues of material fact we reverse and remand.

     We evaluate whether Appellant has raised a valid excessive

force claim under currently applicable constitutional standards

     1
      Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
under the rule of Hudson v. McMillian, 503 U.S. 1 (1992) which

requires that Appellant show that force was applied not in a good

faith effort to maintain or restore discipline but maliciously and

sadistically to cause harm.       Because this incident occurred in

1990, the legal standard of Johnson v. Morel, 876 F.2d 477 (5th

Cir. 1989) governs whether the officer’s conduct was objectively

reasonable.   Under Johnson, Appellant must establish a significant

injury which resulted directly and only from the use of excessive

force and that the excessiveness was objectively unreasonable.

     In his affidavit opposing the summary judgment motion, Carter

stated:

          “I suffered injuries including, cuts and
          lacerations on my leg, a bruise on my face, a
          knot on the right side of my forehead, pains
          in my ribs, blurring of vision and sensitivity
          to light in my right eye, and pain in my neck
          region.”

The district court reasoned that, while the injuries alleged may be

significant   under   Johnson,   Appellant   had    not   shown   that   the

injuries resulted directly and only from the excessiveness of the

force applied.    The district court further reasoned that these

injuries could have occurred from a non-excessive use of force. In

so doing, the district court of necessity resolved issues of

material fact which is inappropriate under Rule 56.         The fact that

injuries may have involved the aggravation of a preexisting neck

injury does not preclude the possibility of recovery.              Dunn v.

Denk, 79 F.3d 401 (5th Cir. 1996)(en banc).        The district court did

not, of course, have the benefit of the en banc Dunn opinion.

     REVERSED and REMANDED.

                                   2
