UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JEAN BERNARD GERMAIN,
Plaintiff-Appellant,

v.
                                                                   No. 99-6979
LOUIS RUZICKA, Captain; EDWARD
TAMES, Sergeant,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-98-3264-MJG)

Submitted: December 22, 1999

Decided: February 8, 2000

Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Jean Bernard Germain, Appellant Pro Se. John Joseph Curran, Jr.,
Attorney General, Glenn William Bell, OFFICE OF THE ATTOR-
NEY GENERAL OF MARYLAND, Baltimore, Maryland, for Appel-
lees.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Jean Germain appeals the district court's order denying relief on
his 42 U.S.C.A. § 1983 (West Supp. 1999) complaint. We affirm on
other grounds the district court's grant of summary judgment in favor
of Appellees, and the dismissal of Germain's action.

Germain, a prisoner committed to the custody of the Commissioner
of Correction of the State of Maryland, filed a complaint naming as
Defendants Louis Ruzicka, Captain, and Edward Sergeant Tames,
Sergeant, of the Maryland House of Correction Annex. Germain
claims that Captain Ruzicka and Sergeant Tames used unnecessary
force against him during a prison disturbance, resulting in the viola-
tion of his civil rights. Specifically, he claims that Sergeant Tames
sprayed mace into his cell while he watched the prison disturbance
from the window of his locked cell, and that Captain Ruzicka struck
him several times with a baton and kicked him while Ruzicka was
moving Germain from his cell to relocate him. Germain also claims
that Sergeant Tames sprayed mace at him a second time after he had
been relocated to an area away from the disturbance, and while he
was locked in a cell and restrained. Germain contends that at all times
during these incidents he was compliant with correctional officers; the
parties agree that it was ultimately determined that Germain was not
involved in the disturbance. Germain claims that the mace allegedly
sprayed by Sergeant Tames caused Germain to suffer a continuous
severe headache for approximately two weeks, and that the incident
with Captain Ruzicka allegedly using the baton caused Germain to
lose his breath.

Summary judgment materials reflect that on May 7, 1997, a major
prison disturbance occurred, resulting in serious injury to staff,
including the stabbing of two correctional officers, and major prop-
erty damage. The worst of the disturbance occurred in D-building, D-

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wing, where Germain was housed. Teams of correctional officers
moved from area to area, attempting to secure the inmates and regain
control of the prison. According to incident reports, order was
restored only when gas canisters were eventually used and the
inmates surrendered from the effects of the gas. Captain Ruzicka and
Sergeant Tames, by affidavit, deny knowing Germain, and deny
assaulting him on the day of the disturbance either physically or with
mace.

Medical records reflect that none of the inmates evacuated out of
D-wing complained of any injury or illness immediately after the inci-
dent. Six days after the incident, Germain filed a sick call request,
complaining of a "nonstop headache" and a runny nose, and attribut-
ing his problems to the "chemical stuff the officers were shooting on
the tier." Germain's exam was essentially normal and Tylenol was
prescribed. A week later, Germain voiced the same complaint; he was
treated similarly. He requested no further medical attention. In his
affidavit submitted in response to the motion for summary judgment,
Germain admitted that he sought no further medical attention, and
attested that he experienced severe headache pain which resolved
approximately two weeks following the incident.

In granting summary judgment, the district court held that, under
the particular facts of this case, the use of chemical agents, even on
inmates in their cells, clearly was not excessive. It further held that,
as to Germain's allegations that Captain Ruzicka struck and kicked
him causing Germain to lose his breath, the claimed injury was
clearly de minimis, such that recovery is precluded.

We review de novo the district court's decision to grant summary
judgment. See Halperin v. Abacus Technology Corp., 128 F.3d 191,
196 (4th Cir. 1997). Summary judgment is appropriate only "if the
pleadings, depositions, answers to interrogatories, and admissions on
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact." Fed. R. Civ. P. 56(c). In deciding
whether there is a genuine issue of material fact, the evidence of the
non-moving party is to be believed and all justifiable inferences must
be drawn in his favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 255 (1986).

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To succeed on this claim of excessive force, Germain must show
that Defendants "inflicted unnecessary and wanton pain and suffer-
ing." Whitley v. Albers, 475 U.S. 312, 320 (1986); see also Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992). The proper inquiry is whether
the force applied was "in a good faith effort to maintain or restore dis-
cipline or maliciously and sadistically for the very purpose of causing
harm." Whitley, 475 U.S. at 320-21 (citing Johnson v. Glick, 481 F.2d
1028, 1033 (2d Cir. 1973)). When reviewing a claim that the use of
mace constituted excessive force, "[t]he question of liability turns
upon the circumstances in which the mace was used." Justice v.
Dennis, 834 F.2d 380, 383 (4th Cir. 1987) (en banc), vacated on other
grounds, 490 U.S. 1087 (1989).

In Norman v. Taylor, 25 F.3d 1259, 1263 (4th Cir. 1994) (en banc),
we held that "absent the most extraordinary circumstances, a plaintiff
cannot prevail on an Eighth Amendment excessive force claim if his
injury is de minimis." Id. at 1263 (citing Hudson v. McMillian, 503
U.S. 1 (1992)). Extraordinary circumstances are present when "the
force used [is] of a sort repugnant to the conscience of mankind . . .
or the pain itself [is] such that it can properly be said to constitute
more than de minimis injury." Id. at 1263 n.4 (internal citations and
quotation marks omitted).

Addressing Germain's excessive force claims against Captain
Ruzicka first, we find proper the district court's determination that the
complaint against Captain Ruzicka is without merit. Germain's sole
claim of injury resulting from Captain Ruzicka's alleged use of force,
that he got the breath knocked out of him, clearly is de minimis. See
Norman v. Taylor, 25 F.3d at 1263.

The district court's dismissal of Germain's claims against Sergeant
Tames on the ground that the use of mace under these circumstances
was not excessive presents a closer question on summary judgment.
However, even assuming, arguendo, that there is a genuine issue of
material fact as to whether Sergeant Tames behaved maliciously or
sadistically when he allegedly used mace against Germain after Ger-
main was restrained in an area away from the disturbance, we find
that Germain has failed to show that the injuries which resulted from
the alleged force are more than de minimis. See Riley v. Dorton, 115
F.3d 1159, 1166 (4th Cir. 1997) (en banc) (holding that a plaintiff

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cannot prevail on a § 1983 excessive force claim if his injury is de
minimis).

Although Germain now claims that he was in severe pain, he does
not dispute that he denied pain or injury on the day of the disturbance,
that he failed to file a request for medical treatment until almost a
week after the incident, or that minimal medical treatment was
required or prescribed for his injuries. Moreover, the headache dissi-
pated within two weeks of its onset. On these facts, no reasonable jury
could conclude that Germain's injuries were more than de minimis.
See Anderson, 477 U.S. at 248 (holding that summary judgment is
appropriate "if the evidence is such that a reasonable jury could [not]
return a verdict for the nonmoving party").

In conclusion, we find that Germain failed to demonstrate anything
more than de minimis injuries at the hands of either Captain Ruzicka
or Sergeant Tames, and that such de minimis injury is insufficient to
state a cognizable § 1983 claim under Norman v. Taylor. Accord-
ingly, we affirm the district court's grant of summary judgment for
Defendants and its dismissal of Germain's complaint. We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the Court and argument
would not aid the decisional process.

AFFIRMED ON OTHER GROUNDS

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