     Case: 12-60906       Document: 00512309644         Page: 1     Date Filed: 07/16/2013




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

                                                                            FILED
                                                                            July 16, 2013
                                     No. 12-60906
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ERNEST E. COLLINS,

                                                  Plaintiff-Appellant

v.

GEO GROUP, INCORPORATED; JAMES TUNSTAN; LIEUTENANT RYAN,
Correctional Officer; LIEUTENANT MARTIN, Correctional Officer;
LIEUTENANT RODGERS, Correctional Officer; WARDEN JESSIE STREETER;
DOCTOR EMMAUEL KPABITEY,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                              USDC No. 3:12-CV-33


Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Ernest E. Collins, Mississippi prisoner # 13044, proceeding pro se and in
forma pauperis (IFP), appeals the dismissal of his 42 U.S.C. § 1983 complaint.
Collins alleged that Officer Tunstan used excessive force in violation of Collins’s
constitutional rights when Tunstan shot him with a riot gun and that Officers
Ryan, Martin, and Rodgers failed to protect him from this excessive force. In

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-60906

addition, Collins alleged that Warden Streeter and Dr. Kpabitey were
deliberately indifferent in delaying his treatment by an eye doctor and that he
continues to have unspecified eye problems as a result of the delay. The district
court dismissed the complaint for failure to state a claim on which relief may be
granted.
      Although the district court did not specify the statutory provision on which
the dismissal of Collins’s complaint was based, the district court was authorized
to dismiss Collins’s complaint for failure to state a claim upon which relief can
be granted under 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1). We review de
novo the dismissal of a complaint pursuant to §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) for failure to state a claim on which relief can be granted. Green v.
Atkinson, 623 F.3d 278, 280 (5th Cir. 2010). To state a claim, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
quotation marks and citation omitted).
      The district court concluded that Collins failed to state a claim for
excessive force because Officer Tunstan’s actions were justified as a good-faith
effort to maintain or restore discipline and were not done maliciously and
sadistically to cause harm. See Hudson v. McMillian, 503 U.S. 1, 6-7 (1992). As
Collins argues, the district court erroneously stated that Officer Tunstan fired
a shot in response to a loud inmate in Collins’s unit, who had initially complied
with the order to lie on the ground but then stood up in defiance of that order;
Collins actually alleged that the loud inmate had been handcuffed and removed
from the unit prior to the shot being fired. However, Collins contradicts his
allegations in arguing that Officer Tunstan’s actions were not justified because
all of the inmates were lying on the floor when the shot was fired. Collins
alleged that Officer Tunstan said that he needed to shoot in response to another
inmate who had stood up or was starting to stand up.



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      Since Collins does not offer any argument regarding whether Officer
Tunstan’s actions were a justified response to the other inmate’s actions, he has
failed to show that the district court erroneously concluded that he failed to state
a claim against Officer Tunstan and the other prison officer defendants.
Moreover, Officer Tunstan’s response to the other inmate’s actions was a
good-faith effort to maintain or restore discipline. See Hudson, 503 U.S. at 6-7.
According to Collins’s allegations, the officers had just resolved an attack on
another officer in an adjoining unit when an inmate in Collins’s unit began to act
disruptively, the officers were greatly outnumbered by the inmates, and Officer
Tunstan fired a non-lethal weapon only after the other inmate disobeyed the
order to lie on the ground by standing up or starting to stand up. Thus, the need
for the application of force, the relationship between the need and the amount
of force used, the threat reasonably perceived by the officers, and the effort made
to temper the severity of the forceful response militate in favor of concluding
that the force applied was not excessive in violation of Collins’s constitutional
rights. See Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
      As to Collins’s argument that the district court should have obtained and
viewed a videotape recording of the shooting, the district court was not required
to allow Collins to conduct discovery prior to dismissing his complaint. See
§§ 1915(e)(2), 1915A(a).
      “[D]elay in medical care can only constitute an Eighth Amendment
violation if there has been deliberate indifference that results in substantial
harm.” Rogers v. Boatright, 709 F.3d 403, 410 (5th Cir. 2013) (internal quotation
marks and citation omitted). Collins alleged that the eye doctor concluded that
his eye had healed and did not reveal any permanent damage. Although he
alleged that he continues to have unspecified eye problems, he did not explain
the nature of his continuing eye problems. Therefore, he failed to allege facts
from which it could be inferred that the delay in providing medical treatment
resulted in substantial harm. See id. Moreover, as the district court reasoned,

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Collins was provided with medical treatment for his eye; he was examined
shortly after his eye was injured, prescribed antibiotics and eye drops, and
examined by Dr. Kpabitey several times before being examined by an eye doctor.
Therefore, Collins’s complaint failed to state a claim that Warden Streeter and
Dr. Kpabitey disregarded Collins’s medical needs. See id.
      Collins also complains of the failure to provide prescribed followup care for
his ingrown eyelashes. As stated, Collins alleged that he continues to have
unspecified eye problems but did not explain the nature of his continuing eye
problems. Therefore, he has not alleged facts from which it could be inferred
that this condition or the failure to treat it constitutes a substantial risk of
serious bodily harm. See Wilson v. Seiter, 501 U.S. 294, 297 (1991); Lawson v.
Dallas County, 286 F.3d 257, 262 (5th Cir. 2002).
      The judgment of the district court is AFFIRMED. Collins’s motion for
appointment of counsel is DENIED as the case does not present “exceptional
circumstances.” Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084
(5th Cir. 1991). The district court’s dismissal of Collins’s § 1983 complaint for
failure to state a claim on which relief may be granted counts as a strike under
§ 1915(g). See § 1915(g); Adepegba v. Hammons, 103 F.3d 383, 387-88 (5th Cir.
1996). Collins is WARNED that if he accumulates three strikes, he will not be
allowed to proceed IFP in any civil action or appeal unless he is under imminent
danger of serious physical injury. See § 1915(g).




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