                  UNITED STATES COURT OF APPEALS
                       For the Fifth Circuit



                           No. 98-11425


                        DEWAYNE SLAUGHTER,

                                              Plaintiff-Appellant,


                              VERSUS


               OFFICER SHACKELFORD; OFFICER ORTIZ,

                                             Defendants-Appellees.




          Appeal from the United States District Court
               For the Northern District of Texas
                          (5:97-CV-291)
                          March 22, 2000
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:*

     Proceeding pro se and in forma pauperis, Dewayne Slaughter, a

Texas prisoner, filed suit under 42 U.S.C. § 1983 alleging that

Defendant-Officers Shackelford and Ortiz used excessive force in

violation of the Eighth Amendment during an incident at the Lubbock

County Jail.   The district court denied Slaughter’s motion for

summary judgment and granted summary judgment to the officers,

dismissing Slaughter’s claim. Because there exists a genuine issue



     *
      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this opinion should not be published and is not precedent except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.
of material fact, we vacate the judgment and remand for trial.



                                I.

     Slaughter was arrested on a warrant revoking his parole and

for burglary of a habitation on April 27, 1997, and was placed in

the Lubbock County Jail.   On the night of July 14, 1997, Slaughter

was shaving in the jail’s day room when Shackelford, who was

distributing personal care items to prisoners, directed him to put

on his shirt.   Slaughter objected and debated with Shackelford as

to whether the rules permitted a prisoner to have his shirt off in

the day room while shaving. After a moment of arguing, Shackelford

went to his superiors to determine who was correct.    He returned

shortly thereafter and confirmed Slaughter’s assertion that a

prisoner could shave without his shirt on in the day room.

     From this point on, the two sides present conflicting versions

of what happened. Slaughter maintains that Shackelford ordered him

to come with Shackelford to another part of the jail, while

Shackelford asserts that Slaughter demanded to see some “brass,” or

higher ranking officers.   What is clear is that Shackelford, with

the assistance of Ortiz, escorted Slaughter from the day room to

another part of the jail, whereupon the alleged use of excessive

force occurred.

     According to Shackelford, when Ortiz and he were escorting

Slaughter through a door connecting the inmate corridor to the

office corridor, Slaughter became aggressive.   Slaughter allegedly

had clenched fists by his side and was inches from Shackelford’s


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face, a posture that in itself was an aggressive act because

Shackelford could no longer see Slaughter’s hands, knees, or feet.

Shackelford responded by grabbing Slaughter’s arm and attempting to

move him forward.         Instead of first moving forward, Slaughter

initially   stepped      back   and   then    apparently    proceeded   towards

Shackelford. Upon observing what appeared to be an aggressive move

towards a fellow officer, Ortiz attempted to place himself between

Slaughter and Shackelford, but Slaughter tried to get past Ortiz.

Subsequently, Ortiz and Shackelford tried to restrain Slaughter and

again tried to move him forward.            Slaughter allegedly continued to

resist.

     Around this time, Sergeant Rocha observed the scuffle and told

the officers to handcuff Slaughter and take him to a violent cell.

Because the two officers did not have enough leverage and were not

able to turn Slaughter around, Shackelford utilized a straight-arm

takedown    to   force   Slaughter     to    the   ground   to    handcuff   him.

Slaughter allegedly continued to resist, causing both officers to

end up on the floor with him and injuring Ortiz.                 After Slaughter

was handcuffed, Shackelford and Ortiz took him to the violent cell

where his handcuffs were removed.            Slaughter did not indicate that

he needed medical attention.            The two officers then left and

returned to their other duties.

     Slaughter’s account of that night’s events contrasts sharply

with the officers’ version.           He maintains that he expressed no

hostility or belligerence while being escorted. Instead, Slaughter

asserts that upon being taken to the trap door, the two officers


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jumped on his body. According to Slaughter’s deposition testimony,

he was standing by the wall next to the trap door when Shackelford

started to yell at him. Slaughter apparently turned around to face

Shackelford,    whereupon   Shackelford   came    within    inches    of

Slaughter’s    face.   Thereafter,    Ortiz   allegedly    came   behind

Slaughter and grabbed Slaughter’s throat, spinning him around into

the wall.   As Ortiz spun Slaughter around, Slaughter contends that

Shackelford grabbed his arm and moved him forward through the door.

At that point, an officer called out to take Slaughter down.

Slaughter argues that he gave no resistance and that he actually

aided the officers by placing his body in a prone position on his

own initiative.   While Slaughter concedes that Ortiz let up on his

hold, he states that Shackelford utilized his arms in a choking

fashion. After the officers placed Slaughter under control, he was

escorted to the “Rubber Room,” where he alleges that he was again

taken to the floor and then hit upon by another officer.

     Slaughter did not initially request medical attention upon

being placed in the violent cell, but he charges that such requests

were tendered to Rocha during the 10 to 11 hours that he was in the

cell that night. Notwithstanding those requests, medical attention

was not given until July 19, five days later.         At the medical

examination, Slaughter was prescribed Motrin and bed rest for five

days.   In mid-August, he again requested and received medical

attention after further complaining of back, neck, and arm pain.

     On September 23, 1997, Slaughter filed suit complaining of

injuries suffered from Shackelford and Ortiz’ use of force.           A


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magistrate judge held a hearing pursuant to Spears v. McCotter, 766

F.2d 179 (5th Cir. 1985), to determine the precise claims made by

Slaughter.      The magistrate judge concluded that Slaughter was

pleading an excessive force claim that sufficiently asserted a

constitutional    deprivation    and,    therefore,   ordered   responsive

pleadings from the two officers.         In their jointly filed answer,

the officers denied using any excessive force, although they

admitted to taking Slaughter down.         After both parties submitted

motions   for    summary    judgment,    the   district   court   granted

Shackelford and Ortiz’ motion and denied Slaughter’s.



                                   II.

     We review a grant or denial of summary judgment de novo.         See

Webb v. Cardiothoracic Surgery Assocs., P.A., 139 F.3d 532, 536

(5th Cir. 1998).     Summary judgment is proper if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with any affidavits filed in support of the motion, show

that there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law.          See Fed.

R. Civ. P. 56(c).   The summary judgment evidence is reviewed in the

light most favorable to the nonmovant. See Melton v. Teachers Ins.

& Annuity Ass’n, 114 F.3d 557, 559 (5th Cir. 1997).        If the moving

party meets its initial burden of showing that there is no genuine

issue, then the burden shifts to the nonmovant to set forth

specific facts showing the existence of a genuine issue.          See Fed.

R. Civ. P. 56(e).          The nonmovant cannot satisfy his summary


                                    5
judgment burden with conclusional allegations, unsubstantiated

assertions, or only a scintilla of evidence.    See Little v. Liquid

Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc).      If the

nonmovant fails to respond, then summary judgment, if appropriate,

shall be entered against that party.     See Fed. R. Civ. P. 56(e).



                                III.

     When prison officials stand accused of using excessive force

in violation of the Eighth Amendment, the key 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, 112 S. Ct. 999 (1992), rev’g, 929 F.2d 1014 (5th Cir.

1990).   To aid in this examination, we have established several

factors for review.    They include:

     1)   the extent of the injury suffered;
     2)   the need for the application of force;
     3)   the relationship between the need and the amount of
     force used;
     4)   the threat reasonably perceived by the responsible
     officials; and
     5)   any efforts made to temper the severity of a
     forceful response.

Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992) (citing

Hudson, 112 S. Ct. 995, 999 (1992)).    Of these factors, the primary

emphasis is “the degree of force employed in relation to the

apparent need for it, as distinguished from the extent of injury

suffered.”   Gomez v. Chandler, 163 F.3d 921, 923 (5th Cir. 1999).

Indeed, the physical injury need not be significant, serious, or

more than minor.      See id. at 924.    De minimis uses of force,



                                  6
however, are excluded from Eighth Amendment analysis provided that

the use of such force is not “repugnant to the conscience of

mankind.”   See Hudson, 112 S. Ct. at 1000.

     In its order, the district court held that Slaughter could not

show that Defendants used force maliciously and sadistically in a

manner to cause harm to Slaughter and that the summary judgment

evidence indicated that Defendants applied force in a good faith

effort to maintain or restore discipline.      But Slaughter’s version

of the events of July 14 contradicts those conclusions.          From the

original    complaint    filed   with   the   Lubbock   County    Jail’s

administration   to     his   deposition   testimony,   Slaughter     has

consistently maintained that the officers attacked him despite a

lack of aggression on his part. In essence, Slaughter charges that

there was no good faith effort to maintain or restore discipline;

rather, the inference from Slaughter’s deposition testimony and his

administrative complaint is that Defendants used force maliciously,

possibly in retaliation for Slaughter’s refutation of Shackelford’s

directive that shaving with a shirt off in the day room was

prohibited.   Hence, we conclude that a genuine issue of material

fact exists as to whether force was applied in a good-faith effort

to maintain or restore discipline, or maliciously and sadistically

to cause harm.

     As further support for its ruling, though, the district court

also concluded that Slaughter had not suffered an injury that was

more than de minimis.    Thus, it apparently surmised that he had not

suffered an identifiable injury sufficient to make out a claim for


                                    7
use of excessive force.       The summary judgment evidence, however,

indicates   that   due   to   Defendants’   actions,   medical   personnel

prescribed five days of bed rest, in addition to medication, for

Slaughter’s injuries.     Such injuries are more than de minimis and

are sufficient to state an excessive force claim.

     For the assigned reasons, we vacate the judgment of the

district court and remand for a trial on the merits.




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