               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE FIFTH CIRCUIT



                           No. 00-51118

                         Summary Calendar


BENITO LUNA,
                           Plaintiff-Appellee-Cross-Appellant,

                              versus

CLINTON D. LOWE; KEVIN T. SMITH,

                            Defendants-Appellants-Cross-Appellees.



          Appeals from the United States District Court
                For the Western District of Texas
                          (SA-97-CV-640)

                         November 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Correctional officers Clinton Lowe and Kevin Smith each admit

striking inmate Benito Luna once after he had been subdued with

tear gas and was lying naked face down on the floor, with his hands

cuffed behind his back and his ankles crossed, with his feet near

or touching his buttocks and Lowe leaning on top of his legs. Lowe

struck Luna one time on the right side of his body with his fist,

and Smith struck Luna with his knee on the right side of his face.


     *
      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this opinion should not be published and is not precedent except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.
Testimony from several officers established that at the time of the

incident, Luna was not resisting and complied with the officers’

orders. Lowe and Smith were formally reprimanded for their conduct,

and testified that their actions were deliberate. They provided no

justification for their actions at trial. Luna brought the instant

action,    alleging   excessive   force   in   violation   of   the   Eighth

Amendment, and a jury returned a verdict in favor of Lowe and

Smith. The officers appeal the district court’s decision to grant

Luna’s motion for a new trial and enter an order granting summary

judgment in favor of Luna.

     We review the district court's grant of a new trial for abuse

of discretion.1 The district court’s grant of summary judgment is

reviewed de novo, applying the same summary judgment standard as

that applied by the district court.2 Lowe and Smith claim that

there is no evidence that Luna suffered any physical injuries as a

result of their actions, and state that their actions were not

premeditated or intended as punishment.

     Neither of these factors are relevant, for Lowe and Smith can

provide no justification for striking Luna. Because Luna was

immobilized and unable to injure the officers, their punching and

kneeing of him indicates that force was not applied in a good faith

effort to maintain or restore discipline.3 The Supreme Court has


     1
         Peterson v. Wilson, 141 F.3d 573, 577 (5th Cir. 1998).
     2
         Williams v. Bramer, 180 F.3d 699, 702 (5th Cir. 1999).
     3
         Whitley v. Albers, 475 U.S. 312, 320 (1986).
held that in the absence of any way in which “the use of force

could plausibly have been thought necessary,” it “instead evinced

such wantonness with respect to the unjustified infliction of harm

as is tantamount to a knowing willingness that it occur.”4

     Lowe and Smith claim that, even if their conduct violated the

Eighth Amendment, Luna did not suffer an injury sufficient to

sustain an excessive force claim. At trial, a registered nurse

testified that Luna was injured as a result of the incident. To

support an Eighth Amendment excessive force claim, a prisoner must

have suffered from the excessive force a more than de minimis

physical injury, but there is no categorical requirement that the

physical injury be significant, serious, or more than minor.5 The

district court did not abuse its discretion in granting Luna’s

motion for a new trial, and did not err in granting summary

judgment on the issue of liability.

     Luna    appeals   the   application   of   42   U.S.C.   §   1997e   in

calculating his award of attorney’s fees. He claims that Section

1997e applies only to suits challenging prison conditions, not to

excessive force claims. The attorney fee provision of Section 1997e

applies to cases brought under 42 U.S.C. § 1988, which governs

actions filed under 42 U.S.C. § 1983.6 Thus Section 1997e applies

in this case, and the district court did not err. AFFIRMED.


     4
         Id. at 321.
     5
         Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999).
     6
         42 U.S.C. § 1997e(d)(1).
