                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS       September 29, 2005
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 04-41226
                         Summary Calendar


PHILLIP MARK BAILEY,

                                         Plaintiff-Appellant,

versus

CHRIS TURNER, Officer, City of Tyler Police; FNU
HALL, Sergeant, Supervisor, City of Tyler Police;
GARY SWINDLE, Chief, City of Tyler Police; OFFICER,
Smith County Detention Center; J. B. SMITH,

                                         Defendants-Appellees.

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                     USDC No. 6:03-CV-452-JKG
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Phillip Mark Bailey, who is now a Texas prisoner

(# 1170944), appeals from the district court’s order dismissing

his pro se 42 U.S.C. § 1983 civil rights action as frivolous,

under 28 U.S.C. § 1915(e)(2)(B)(i), following a hearing pursuant

to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

     In his complaint, Bailey alleged that Police Sergeant Hall

and Officer Turner of the City of Tyler (Tex.) Police Department

subjected him to excessive force during his arrest in the early

morning hours of December 10, 2002, when they took him to the

     *
       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this opinion should not be published and is not precedent except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.
                            No. 04-41226
                                 -2-

ground after a high-speed police chase and Hall sprayed pepper or

“OC” spray directly into Bailey’s eyes, mouth, and nose for as

long as 25 seconds while Bailey was handcuffed on the ground and

not resisting.    Bailey also alleged that, after Turner and Hall

took him to the Smith County Jail (“Jail”), Turner and an unknown

officer at the Jail refused to “decontaminate” him or otherwise

treat him for the injuries caused by the pepper spraying.

Finally, Bailey sued two supervisory defendants, Police Chief

Gary Swindle and Sheriff J. B. Smith, based on their alleged

failure to train subordinates adequately and to enforce policies.

     The magistrate judge dismissed all of these claims as

frivolous after considering testimony from a lengthy hearing

pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), as

well as Bailey’s inmate medical records and a police videotape of

the police chase and arrest.    The magistrate judge determined

that the videotape contradicted Bailey’s central allegation that

he was pepper-sprayed for as long as 25 seconds, because,

according to the magistrate judge, the tape showed that Bailey

was taken to the ground and lifted back to his feet in the short

span of 16 or fewer seconds.    The magistrate judge concluded that

the defendants’ use of force was not unreasonable, given the

dangerous car chase, Bailey’s admission to having been drinking

and smoking crack cocaine, and Bailey’s unpredictable behavior

upon emerging from his truck after police finally succeeded in

stopping him.    The magistrate judge also ruled that Bailey’s

allegations that defendants were deliberately indifferent to his

serious medical needs were contradicted by Bailey’s own sick-call
                            No. 04-41226
                                 -3-

requests and medical records, which showed that he complained

about no medical problems conceivably related to the pepper

spraying until June 2003, six months after the arrest.

     A district court shall dismiss an IFP complaint at any time

that the court determines that the complaint is frivolous.

28 U.S.C. § 1915(e)(2)(B)(i).   This court reviews a dismissal as

frivolous for abuse of discretion.    Taylor v. Johnson, 257 F.3d

470, 472 (5th Cir. 2001).   A complaint is “frivolous” if it lacks

“an arguable basis in law or fact.”     Berry v. Brady, 192 F.3d

504, 507 (5th Cir. 1999).   “A complaint lacks an arguable basis

in law if it is based on an indisputably meritless legal

theory[.]”   Harper v. Showers, 174 F.3d 716, 718 (5th Cir. 1999)

(citation and internal quotation marks omitted).     “‘A complaint

lacks an arguable basis in fact if, after providing the plaintiff

the opportunity to present additional facts when necessary, the

facts alleged are clearly baseless.’”      Berry, 192 F.3d at 507

(citation omitted).

     A claim that a law enforcement officer used excessive force

in the course of an arrest is analyzed under the Fourth

Amendment.   Graham v. Connor, 490 U.S. 386, 395 (1989).    An

excessive-use-of-force claim requires a plaintiff to prove 1) an

injury, which 2) resulted directly and solely from the use of

force that was clearly excessive to the need, and the

excessiveness of which was 3) objectively unreasonable.      Ikerd v.

Blair, 101 F.3d 430, 433-34 (5th Cir. 1996).     This determination

“requires careful attention to the facts and circumstances of

each particular case, including the severity of the crime at
                             No. 04-41226
                                  -4-

issue, whether the suspect poses an immediate threat to the

safety of the officers or others, and whether he is actively

resisting arrest or attempting to evade arrest by flight.”

Graham, 490 U.S. at 396.

     The magistrate judge’s designation of Bailey’s excessive-

force claim as frivolous was based largely on her interpretation

of events on the videotape, which she believed contradicted

Bailey’s central allegation.    The magistrate judge determined

that the tape showed that Bailey continued to move forward after

being told to “get his hands up” and that he was on the ground

for only “about half [of the] time” that Bailey alleged that

defendant Hall had sprayed him with pepper spray.    Our review of

the tape produces far less certainty about those events.    The

take-down and handcuffing of Bailey occurred off-screen.    It is

at least arguable that the tape shows that Bailey in fact stopped

in his tracks for three or four seconds before being tackled by

one or both of the officers.    It is also arguable that the tape

shows that, after tackling and handcuffing Bailey, one of the two

officers did not get off the ground for approximately 25 seconds

and that Bailey himself was not pulled off the ground for

approximately two minutes.    In our view, the tape is insufficient

to contradict Bailey’s allegation that defendant Hall sprayed him

directly in the face with pepper spray for between 10 and 25

seconds.   Although Bailey was plainly intoxicated and had led the

officers on a dangerous, high-speed chase, we conclude that

Bailey’s allegations were adequate to state a non-frivolous

excessive-force claim.     See Graham, 490 U.S. at 396; Estate of
                            No. 04-41226
                                 -5-

Moreland v. Dieter, 395 F.3d 747, 757 (7th Cir.), cert. denied,

125 S. Ct. 2915 (2005); Champion v. Outlook Nashville, Inc., 380

F.3d 893, 901 (6th Cir. 2004), cert. denied, 125 S. Ct. 1837

(2005); Vinyard v. Wilson, 311 F.3d 1340, 1348 & nn. 10, 11, & 12

(11th Cir. 2002).   Accordingly, we VACATE and REMAND for further

proceedings as to Bailey’s excessive-force claim against

defendants Hall and Turner.

     As for Bailey’s claim that certain defendants were

deliberately indifferent to his serious medical needs, a pre-

trial detainee’s “constitutional right to medical care . . .

flows from the procedural and substantive due process guarantees

of the Fourteenth Amendment.”    Wagner v. Bay City, Tex., 227 F.3d

316, 324 (5th Cir. 2000).   To establish an unconstitutional

denial of medical care, a pretrial detainee must show that an

official “‘acted with deliberate indifference to a substantial

risk of serious medical harm and that injuries resulted.’”     Id.

(citation omitted).   The officer must have subjective intent to

cause harm.   Id.   Such deliberate indifference involves more than

mere negligence in failing to provide medical treatment.

Williams v. Treen, 671 F.2d 892, 901 (5th Cir. 1982).

     We agree with the magistrate judge that Bailey’s rather

vague deliberate-indifference allegations were contradicted by

Spears testimony and evidence and were frivolous.   First, the

police videotape, insofar as it is audible, shows that, during an

approximately 40-minute period during which Bailey was placed in

the back of the patrol car after his arrest and then driven to

the Jail, Bailey made no explicit request for medical treatment
                            No. 04-41226
                                 -6-

for the effects of the pepper spray.   During the Spears hearing

itself, Bailey did not appear certain about his memory of what

treatment he had received, or not received, upon his arrival at

the Jail.   Finally, the medical records show that Bailey made

frequent sick-call requests between December 11, 2002 (the day

after the arrest), and June 2003, but that none of those requests

involved any medical complaint that could be reasonably construed

as having been caused by the pepper spraying on December 10,

2002.   Although Bailey was treated for serious nosebleeds in June

2003, there is nothing in the records or in his own allegations

to show that they were caused by the pepper spray.   The

magistrate judge did not abuse her discretion in concluding that

Bailey’s deliberate-indifference claims were contradicted by the

medical records and other evidence.    See Banuelos v. McFarland,

41 F.3d 232, 235 (5th Cir. 1995); Taylor, 257 F.3d at 472.     We

AFFIRM the dismissal of Bailey’s deliberate-indifference claims

as frivolous.

     Insofar as Bailey is suing supervisory defendants Smith and

Swindle, his allegations remain far too conclusory to establish a

causal connection between either supervisor’s conduct and any

constitutional violation.    See Colle v. Brazos County, Tex., 981

F.2d 237, 243 (5th Cir. 1993); Thompson v. Belt, 828 F.2d 298,

303 (5th Cir. 1987).

     AFFIRMED IN PART; VACATED AND REMANDED IN PART.    We express

no view on the ultimate merits of the case on remand.
