UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUDOLPH MCNEIL,
Plaintiff-Appellant,

v.

THOMAS CORCORAN, Warden;
COMMISSIONER OF CORRECTION;
SERGEANT BROWN; LIEUTENANT HALL;
CORRECTIONAL OFFICER DORSEY, II;
SERGEANT JOHNSON; CORRECTIONAL
                                                               No. 98-7093
OFFICER SMITH, II; CORRECTIONAL
OFFICER TAYLOR, II; CORRECTIONAL
OFFICER BURRELL; CORRECTIONAL
OFFICER GUY, II; CORRECTIONAL
OFFICER BRIDGEPORT, II; M. D.
GAVIGAN, Lieutenant; EDWARD
TAMES, Sergeant,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-97-3675-AMD)

Submitted: December 22, 1998

Decided: January 14, 1999

Before MURNAGHAN and NIEMEYER, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

Rudolph McNeil, Appellant Pro Se. John Joseph Curran, Jr., Attorney
General, Stephanie Judith Lane-Weber, Assistant Attorney General,
Baltimore, Maryland, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Rudolph McNeil appeals the decision of the district court granting
summary judgment on behalf of Defendants in his civil rights action
under 42 U.S.C.A. § 1983 (West Supp. 1998). McNeil, an inmate at
the Maryland House of Correction Annex (MCHX), alleges that he
was the victim of excessive force. For the reasons set forth below, we
vacate the judgment of the district court and remand for further pro-
ceedings.

In May of 1997, a series of events culminated in an inmate uprising
at MCHX. In the aftermath of this event, the prison warden ordered
a search of all cells in order to locate weapons that were used during
the disturbance. It was during the search of McNeil's cell pursuant to
that order that the events leading to this action occurred.

Our examination of the record reveals a number of inconsistent fac-
tual allegations; however, the following facts are undisputed. On May
9, 1997, an altercation occurred between one or more guards and
McNeil during the search of McNeil's cell. McNeil was then taken to
the prison infirmary for treatment. He was seen by a nurse briefly in
the infirmary and then placed in solitary confinement. In the follow-
ing eighteen days, McNeil requested medical attention, either for-
mally or informally, at least six times, but was denied access to
medical personnel. On May 30, three weeks after the altercation,

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McNeil was seen by a physician who noted a history of "blunt trauma
to the body." (R. 20, exh. 2 at 2). On June 9, McNeil was admitted
to the infirmary after becoming ill and was diagnosed with acute
appendicitis. Doctors successfully performed an emergency appen-
dectomy. McNeil thereafter filed the instant suit alleging violation of
his civil rights.

The record also discloses a number of inconsistent factual allega-
tions between the parties that directly relate to the necessity of Defen-
dants' use of physical force against McNeil as well as to the causation
of McNeil's appendicitis. First, Defendants assert that any force used
against McNeil was a direct result of his failure to comply with their
orders incident to the search of McNeil's cell, while McNeil claims
to have been subjected to an unprovoked beating. Second, McNeil
states in his affidavit that, while in the infirmary, he was subjected to
a second and lengthy beating by prison guards. The Defendants flatly
deny this allegation. Finally, McNeil claims that his appendicitis was
the result of injuries sustained from the actions of the Defendants. The
Defendants also deny this allegation.

In granting summary judgment for the Defendants, the district
court determined that the force used against McNeil was necessary to
gain his compliance: "the force used was not only necessary but was
measured and of short duration, and therefore did not comprise the
malicious or sadistic use of force prohibited under the Constitution."
(R. 25 at 10). We conclude, however, that such a determination was
premature. Where resolution of an issue of fact depends upon credi-
bility determinations, summary judgment is not appropriate. See Gray
v. Spillman, 925 F.2d 90, 95 (1991). To the contrary, credibility deter-
minations are the responsibility of the jury. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986). In determining that the force
employed was necessary, the court implicitly accepted the version of
events as sworn by the Defendants and rejected those of McNeil. This
it cannot do on a motion for summary judgment.

The court also erred in its determination that McNeil failed to
allege sufficient evidence of more than de minimis injuries. In his
affidavit, McNeil alleged that his appendicitis was proximately
caused by the Defendants' actions.1 While the defendants deny
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1 Although expressing no opinion as to the ultimate merits of this
claim, we note that Dorland's illustrated medical dictionary 109 (28th ed.

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McNeil's claim, we cannot conclude on the present record that there
is no genuine issue of material fact as to the cause of McNeal's
appendicitis. Accordingly, summary judgment was premature.

Finally, the court dismissed the action in part based on McNeil's
failure to specify who he claims beat him in the prison infirmary.2
However, McNeil identified the staff members who he states were in
the infirmary with him at the time of the incident. Because McNeil
was proceeding pro se, the court should have permitted him an oppor-
tunity to amend his complaint to more specifically identify the guards
or other staff who allegedly beat him. See Gordon v. Leeke, 574 F.2d
1147, 1152-53 (4th Cir. 1978).

We vacate the judgment of the district court and remand the case
for further proceedings consistent with this opinion. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
significantly aid the decisional process.

VACATED AND REMANDED
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1994) defines traumatic appendicitis as "appendicitis caused by external
trauma."
2 As the court noted, McNeil only identified the guards responsible for
a few of the blows allegedly inflicted on him.

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