                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                     FILED
                       ________________________          U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                                July 6, 2006
                              No. 05-16153                  THOMAS K. KAHN
                          Non-Argument Calendar                 CLERK
                        ________________________

                   D. C. Docket No. 02-00067-CV-BAE-6

JAI DEVON LEE,

                                                                Plaintiff-Appellant,

                                   versus

JON GRINER, LYNN ANDERSON,
DEPUTIES OF DRUG SUPPRESSION TEAM,
DEPUTIES OF S.W.A.T. TEAM,
RICK ROUNDTREE, et al.,

                                                         Defendants-Appellees.

                        ________________________

                 Appeal from the United States District Court
                    for the Southern District of Georgia
                      _________________________

                               (July 6, 2006)

Before MARCUS, WILSON and HILL, Circuit Judges.


PER CURIAM:
        Jai Devon Lee brought this 42 U.S.C. § 1983 action against defendants

claiming that they intentionally deprived him of his constitutional right to be free

from cruel and unusual punishment. He alleged that the defendants, acting under

color of law at the Bullock County Jail, used excessive force upon him by exposing

him to large concentrations of tear gas and pepper gas while he was confined in his

cell.

        At trial, Lee requested the court to instruct the jury that they could find the

defendants liable if they “intentionally committed or were deliberately indifferent

to acts that violated the Plaintiff’s constitutional right not to be subjected to cruel

and unusual punishment.” The court, however, gave the Eleventh Circuit pattern

instruction that instructed the jury that they could find for the plaintiff only if the

defendants acted “maliciously and sadistically to cause harm” to the plaintiff.1 The

jury found for the defendants.

        The sole issue on appeal is whether this instruction was correct. Lee argues

that the “heightened requirement of ‘sadistic and malicious intent’ applies only to

exigent circumstances where deadly force is necessary to control a violent

situation.” We review the jury instruction given for an abuse of discretion.

Johnson v. Breeden, 280 F.3d 1308 (11 th Cir. 2002).



        1
            Lee sought to graft his proposed language onto the pattern jury instruction.

                                                    2
      Lee argues that the jury was incorrectly instructed that they must find that

the officers acted maliciously and with sadistic intent in order for him to prevail.

He argues that the Supreme Court in Whitley limited this “heightened intent

requirement” for excessive force claims to cases involving exigent circumstances,

such as a prison riot. See Whitley v. Albers, 475 U.S. 312 (1985).

      This is not the law. In Hudson v. McMillian, 503 U.S. 1, 6 (1992), the

Supreme Court held that all claims of excessive force, regardless of exigency, are

to be judged by “whether force was applied in a good faith effort to maintain or

restore discipline or maliciously and sadistically for the very purpose of causing

harm.” We specifically noted in Campbell v. Sikes, 169 F.3d 1353, 1374-75 (11 th

Cir. 1999), that:

      [I]n Hudson, the Supreme Court extended Whitley’s holding outside
      the prison-riot context and applied the same heightened intent
      requirement to force used as a prophylactic, preventive measure. The
      Hudson Court held that “whenever prison officials stand accused of
      using excessive physical force in violation of the Cruel and Unusual
      Punishments Clause, the core judicial inquiry is that set out in
      Whitley: whether force was applied in a good-faith effort to maintain
      or restore discipline, or maliciously and sadistically to cause harm.”

169 F.3d at 174 (citations omitted).

      Since this is exactly what the district court instructed the jury that they must

find, Lee’s allegation of error in this regard is without merit.

      Accordingly, the judgment of the district court is

      AFFIRMED.

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