                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-12-2003

Gordon v. Gonzalez
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3676




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                                                              NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


                                      No. 01-3676




                         JUKEN WASHINGTON GORDON,
                                            Appellant
                                     v.

                    N. GONZALEZ, Lieutenant - FCI Lewisburg;
                      S. PUCKEY; B. SHUMAN, SOS Officer;
                          J.A. CANDELORA, S.O. Officer;
                              G. SHUCK, SOS Officer;
                   PEORIA, Dr.; UNITED STATES OF AMERICA




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                             (D.C. Civil No. 01-cv-00331)
                        District Judge: Hon. Sylvia H. Rambo


                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 5, 2003

    Before: SLOVITER, ALITO Circuit Judges and OBERDORFER, District Judge*

                              (Filed: December 12, 2003)


                              OPINION OF THE COURT


*     Hon. Louis F. Oberdorfer, United States District Court for the District of
      Columbia, sitting by designation.
SLOVITER, Circuit Judge.

       Appellant Juken Washington Gordon filed a Bivens claim pursuant to 28 U.S.C. §

1331 alleging that while he was incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania, a physician’s assistant was deliberately indifferent to his

serious medical needs, and five named correctional officers used excessive force against

him in violation of his Eighth Amendment right to be free from cruel and unusual

punishment. The District Court dismissed his claim against the physician’s assistant for

failure to exhaust his administrative remedies and granted summary judgment on

Gordon’s excessive force claim. The court also denied Gordon’s motion for leave to

amend his complaint to add a due process claim. On the excessive force claim, the

District Court found that Gordon had not suffered physical injury and thus could not state

a claim. Gordon appeals.

       Following the District Court’s order granting summary judgment, this court, in its

opinion in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), reversed the grant of

summary judgment in favor of defendant prison officials on a prisoner’s claim that

defendants had violated his Eighth Amendment right by the use of excessive force. In

Smith, the District Court had focused exclusively on the severity of the prisoner’s injuries

in denying the claim. Our opinion relied upon the Supreme Court’s decision in Hudson v.

McMillian, 503 U.S. 1 (1992), holding that “the use of excessive physical force against a

prisoner may constitute cruel and unusual punishment when the inmate does not suffer



                                             2
serious injury.” Id. at 4. We applied Hudson in our decision in Brooks v. Kyler, 204 F.3d

102 (3d Cir. 2000), where we stated that accepting the prisoner’s allegations as true, “a

jury could find that the defendants acted not merely in good faith to maintain or restore

discipline, but rather out of malice for the very purpose of causing harm.” Id. at 109

(citation omitted).

       In Smith, our most recent decision concerning the issue before us in this case, we

reiterated that the “Eighth Amendment does not protect an inmate against an objectively

de minimis use of force.” Smith, 293 F.3d at 648 (citing Hudson). After considering our

decision in Brooks and the Supreme Court’s decision in Hudson, we concluded that “de

minimis injuries do not necessarily establish de minimis force.” Id. at 649.

       In Gordon’s case before us, the Government candidly “confesses error.” Gov’t Br.

at 5. The Government continues, “the Smith decision, as well as Gordon’s sworn

affidavit filed in response to the summary judgment motion claiming that he told Dr.

Reish that he had no back problems prior to September 9, 2000, and that his back

problems were as a result of the beating by the officers [ ], suggest that there are genuine

issues of material fact concerning the extent of Gordon’s injuries, and as such, summary

judgment was improper.” Gov’t Br. at 5. The Government concludes that “Smith

requires the issue to [be] submitted to a jury.” Id.

       In Gordon’s opening brief on appeal, he raised two arguments: one, that the

District Court abused its discretion by denying him leave to amend his complaint, and



                                              3
two, that the District Court erred in granting summary judgment on the excessive force

claim because there were issues of material fact. In his reply brief, Gordon withdraws his

appeal of the District Court’s order denying his motion to amend his complaint.

Therefore, only the excessive force claim is before us. In light of our precedent and the

Government’s concession that summary judgment was improper, we will remand that

claim to the District Court for its reconsideration.1

        For the reasons set forth above, we will vacate the District Court’s order granting

summary judgment and remand to the District Court for further proceedings in

accordance with this opinion.

__________________________

TO THE CLERK:

              Please file the foregoing opinion.


                   \s\ Dolores K. Sloviter
                       Circuit Judge




   1
     In a separate order, we will refer to the District Court the letter from Gordon dated
6/19/02, which this court has treated as a motion to preserve evidence and provide
appellant with copy of a surveillance videotape.
