                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                   July 24, 2007

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 06-40131
                          Summary Calendar


HAROLD V. DAVIS,

                                     Plaintiff-Appellant,

versus

DOCTOR KEN KUYKENDALL; CURTIS LAWSON; DAVID DIXON,

                                     Defendants-Appellees.

                        --------------------
           Appeal from the United States District Court
                 for the Eastern District of Texas
                        USDC No. 6:04-CV-500
                        --------------------

Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Harold V. Davis, Texas prisoner # 1068730, alleged under

42 U.S.C. § 1983 a denial of adequate medical treatment and the

use of excessive force.    He appeals the dismissal as frivolous of

the medical claim and the summary judgment on the excessive force

claims.   Davis appeals the denial of his motions for appointment

of counsel.    Davis’s motion for reconsideration of the Clerk’s

notification that no action would be taken on an emergency motion

for injunctive relief is denied.



     *
       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this opinion should not be published and is not precedent except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.
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                                 -2-

     Davis argues that Kuykendall violated his Eighth Amendment

rights because Kuykendall did not provide Davis a wheelchair,

although Davis alleged that he could not walk, and did not order

wheelchair transportation, which Davis alleged was necessary for

him to be examined by a specialist.   We review for abuse of

discretion the dismissal of a claim as frivolous under 28 U.S.C.

§ 1915(e).   Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.

1998).   A claim is frivolous if it lacks an arguable basis in law

or fact.   Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999).

     To establish an Eighth Amendment claim for the denial of

adequate medical treatment, a prisoner must show that prison

officials acted with deliberate indifference to the prisoner’s

serious medical needs, constituting an unnecessary and wanton

infliction of pain.    Wilson v. Seiter, 501 U.S. 294, 297 (1991).

Unsuccessful medical treatment, acts of negligence, neglect, or

medical malpractice are insufficient to give rise to a § 1983

cause of action.   Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir.

1991).   A delay in medical care constitutes an Eighth Amendment

violation only if there has been “deliberate indifference, which

results in substantial harm.”    Mendoza v. Lynaugh, 989 F.2d 191,

195 (5th Cir. 1993).

     Kuykendall examined Davis, determining that a wheelchair was

not medically necessary, Davis’s muscle tone was good, and that

Davis did not have muscle atrophy in his legs.   After Kuykendall

examined Davis’s medical records, he referred Davis to a
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                                 -3-

specialist, provided Davis a wheelchair pass, and ordered the

transportation necessary to enable Davis to see a specialist.

Although Davis did not agree with Kuykendall’s evaluation of his

condition or the timeliness with which his concerns were

addressed, Davis’s allegations do not establish deliberate

indifference.    See Mendoza, 989 F.2d at   195; Varnado, 920 F.2d

at 321.    The dismissal of Davis’s claim against Kuykendall was

not an abuse of discretion.    Ruiz, 160 F.3d at 275.

       Davis’s excessive force claim against Sergeant David Dixon

involves an incident that occurred in December 2002.     Davis

asserted that he was being escorted from his cell by guards,

including Dixon, with his hands cuffed behind his back.     In

response to Davis refusing to continue walking, a guard jerked

Davis’s arm and when Davis jerked back, Dixon and another guard

brought Davis to his back on the floor.     While holding Davis’s

head, the three guards hit Davis.    When they ceased, the officers

dropped Davis’s head to the floor and Dixon kicked Davis in the

ear.    A medical examination showed that Davis had contusions on

his left check and the bridge of his nose, pin-sized lacerations

to his right cheek and the right side of his neck, and that his

right ear was bruised, purple, and swollen.

       The second alleged excessive force incident occurred in

April 2003.    Davis had tied his cell door shut so that no one

could enter his cell due to his alleged inability to walk.       When

Lawson managed to open the cell door, Davis, who was sitting on
                             No. 06-40131
                                  -4-

the floor, squirted Lawson in the face and chest with an unknown

substance.    According to Davis, Lawson closed the cell door after

being squirted, then opened the door and kicked Davis, sending

Davis across his cell.    Davis asserts that Lawson stomped on

Davis’s upper back, neck, and head until Davis’s head began to

bleed.   An examination of Davis showed that he suffered bruising

and lacerations to his forehead that required the application of

steristrip bandages and that he suffered bruising to his lower

back and the area between his shoulder blades.

     The district court granted summary judgment in favor of

Dixon and Lawson, holding that the injuries Davis sustained were

de minimis and that Dixon and Lawson had used de minimis force.

We review de novo the district court’s grant of summary judgment.

Stewart v. Murphy, 174 F.3d 530, 533 (5th Cir. 1999).     Summary

judgment is appropriate if the evidence shows that “there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”     FED. R. CIV.

P. 56(c).    We view the evidence in the light most favorable to

the nonmoving party.     Jenkins v. Cleco Power LLC,    F.3d      , No.

05-30744, 2007 WL 1454363 at *3 (5th Cir. May 18, 2007).

     In determining whether a claim of excessive force amounts to

an Eighth Amendment violation we examine the extent of the

injury; the need for the applied force; the relationship between

the need and the force used; the threat reasonably perceived by

officials; and efforts made to temper the severity of a forceful
                            No. 06-40131
                                 -5-

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

The physical injury suffered must be more than de minimis but

need not be significant.    Id. at 924.    The core 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, 503 U.S. 1, 6-7 (1992).

     The evidence, construed in the light most favorable to

Davis, reveals material issues of fact concerning whether the

injuries suffered as a result of each incident were de minimis.

See Brown v. Lippard, 472 F.3d 384, 387 (5th Cir. 2006); Gomez,

163 F.3d at 924-25.   Additionally, material issues of fact exist

regarding whether Dixon kicked Davis in the ear or otherwise

injured him and, if so, whether this was done maliciously or in a

good faith effort to restore discipline.     Material issues of fact

also exist regarding whether Lawson, who admitted kicking Davis

in the face, did so in immediate response to being sprayed with

the unknown substance and whether the amount of force used was

reasonable in light of the threat he perceived, or whether,

Lawson exited the cell, then returned, and struck Davis.     Given

the existence of material issues of fact, we vacate the district

court’s summary judgment in favor of Dixon and Lawson.

     Davis challenges the district court’s determination that the

claims of imminent danger raised in a post judgment motion were

unrelated to this action.   The district court did not abuse its

discretion in denying the motion for relief from judgment.       See
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                                -6-

Provident Life and Accident Ins. Co. v. Goel, 274 F.3d 984, 997

(5th Cir. 2001).   We do not address Davis’s arguments regarding

the failure to protect him from harm and incidents that occurred

on December 19, 2002, and January 16, 2007.   See Leverette v.

Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).   The

district court did not abuse its discretion in denying Davis’s

motions for appointment of counsel.   See Cupit v. Jones, 835 F.2d

82, 86 (5th Cir. 1987); Ulmer v. Chancellor, 691 F.2d 209, 212

(5th Cir. 1982).

     JUDGMENT AFFIRMED IN PART; SUMMARY JUDGMENT ON EXCESSIVE
     FORCE CLAIMS VACATED AND CASE REMANDED FOR FURTHER
     PROCEEDINGS; MOTION FOR RECONSIDERATION DENIED.
