     Case: 09-30762     Document: 00511066757          Page: 1    Date Filed: 03/30/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                           March 30, 2010
                                     No. 09-30762
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

BRANDON R CHAMBERS,

                                                   Plaintiff - Appellee

v.

JAMES JOHNSON; J L DECUIR; JEFFREY MELCHIOR,

                                                   Defendants - Appellants


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:07-CV-848


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Brandon R. Chambers, Louisiana prisoner # 44028, brought a civil rights
suit against, among others, three guards. Those guards, James Johnson, J. L.
Decuir, and Jeffrey Melchior, moved for summary judgment based on qualified
immunity. The motion was denied, and they appeal. We AFFIRM.
        Chambers claims that these defendants used excessive force against him
in violation of the Eighth Amendment. His allegations stem from an incident on
December 9, 2006.          At the time of the confrontation, Chambers was on

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
   Case: 09-30762       Document: 00511066757 Page: 2             Date Filed: 03/30/2010
                                    No. 09-30762

“restricted cell status.” As a result, he was not permitted to have anything in his
cell, not even a blanket, and wore only a paper gown. Chambers acquired a
blanket apparently intended for his cell mate who was not on this restricted
status. Factual disputes exist as to what occurred. When defendants demanded
return of the blanket, Chambers insists that he immediately complied.
Chambers further asserts that defendants nonetheless emptied two cans of
chemical irritant into his cell and shot him twenty-nine times with a pepper ball
launcher.1 Defendants deny that Chambers complied and allege that, instead,
he barricaded himself in the cell using a mattress.
       The defendants contend that the use of a pepper ball launcher did not
constitute excessive force after attempts to gain Chambers’s compliance through
direct verbal orders and use of chemical agents proved unsuccessful.
       The Magistrate Judge, in a report adopted as the district court’s opinion,
held that Chambers had sufficiently claimed the use of excessive force in
violation of the Eighth Amendment. The contentions of the defendants created
a fact issue that could not be resolved on summary judgment.
       The denial of a motion for summary judgment based upon qualified
immunity is a collateral order capable of immediate review. Mitchell v. Forsyth,
472 U.S. 511, 530 (1985).           Our review is “significantly limited,” though,
extending to questions of law only. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.
2004) (en banc). We have authority to review a district court’s determination
that “a certain course of conduct would, as a matter of law, be objectively
unreasonable in light of clearly established law.” Id. We may not review,
however, a determination that there are genuine issues of material fact about
whether defendants engaged in that course of conduct. Id. When reviewing the
purely legal questions about the claimed course of conduct, we “accept the



       1
         This device was described in the record as “less than lethal” and apparently involves
projectiles containing hot pepper powder which were dispensed using a riot shotgun.

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                                 No. 09-30762

plaintiffs’ version of the facts as true.” Id. at 348. There is no basis on which to
reverse the finding of a material factual dispute.
      Also challenged on appeal was the district court’s resolution of the factual
dispute of whether Chambers’s guilty plea in a prison disciplinary plea arose
from the same incident that is the basis for this Section 1983 claim.           The
defendants allege that he was disciplined for the same incident, and that until
the decision on that discipline is set aside, he can not pursue this civil claim. See
Edwards v. Balisok, 520 U.S. 641 (1997); Heck v. Humphrey, 512 U.S. 477
(1994). The district court did not discuss this issue, though the defendants had
raised the point in their summary judgment motion. Perhaps it was ignored
because the Magistrate Judge, in denying an earlier motion to dismiss, had
found the argument to be “patently disingenuous.” That conclusion was based
on the Magistrate Judge’s fact-finding that the discipline was for events that had
occurred on the day before the ones at issue in this suit.
      Here, too, we lack jurisdiction on this interlocutory appeal to review the
finding that the discipline was not for the same events as the civil claim.
      We now review the issues we have authority to review. On an Eighth
Amendment claim against prison officials for the use of excessive physical force,
the question 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, 503 U.S. 1, 7 (1992). Chambers’s factual allegations are sufficient
to support an Eighth Amendment violation. If Chambers returned the blanket
on request, as he asserts, then the defendants could not have reasonably
perceived any threat requiring a need to use force. The use of twenty-nine
pepper balls following the use of mace after he had complied with the
defendants’ demands was disproportionate to any possible provocation.
      The extent of injury is also questioned. We hold there are sufficient
factual assertions that the pain and scarring caused by the use of force was more



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than de minimis. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999);
Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
      On Chambers’s allegations, as summarized by the Magistrate Judge, the
defendants’ course of conduct was not objectively reasonable under clearly
existing law. See Hudson, 503 U.S. at 6-7; Kinney, 367 F.3d at 347.
      Chambers also moves for appointment of counsel to represent him on
appeal. We have left in place the decision in his favor and thus fail to see
exceptional circumstances warranting the appointment of counsel on appeal.
See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
      AFFIRMED; APPOINTMENT OF COUNSEL DENIED.




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