                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT


                             No. 01-30997



DAVID JAMES EDWARDS,

                                  Plaintiff-Appellant,

      v.

K STEWART,

                                  Defendant-Appellee.

                         --------------------

              Appeal from the United States District Court
           for the Middle District of Louisiana, Baton Rouge
                               01-CV-429-D

                         --------------------
                             May 10, 2002

Before SMITH, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

      David James Edwards (“Edwards”), a Louisiana prisoner, appeals

the dismissal for failure to state a claim of his 42 U.S.C. § 1983

in   forma   pauperis   action   against   K.   Stewart   (“Stewart”),   a

Lieutenant at Hunt Correctional Center.         We review the dismissal

de novo, taking all of the plaintiff's factual allegations as true.

See Clay v. Allen, 242 F.3d 679, 680 (5th Cir. 2001).




      *
     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this opinion should not be published and is not precedent except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.
                         FACTUAL   AND   PROCEDURAL BACKGROUND

       Edwards alleges that on July 8, 2000, while restraining

another prisoner, Stewart told Edwards that he would be next.

Shortly afterwards, without provocation, Stewart attacked him.

While Edwards was in his cell, Stewart sprayed him with “pepper

gas” and said “I told you I was going to get you.”                      Stewart left

for a few minutes.       Upon his return, he ordered Edwards to come to

the    bars   to    be   restrained.            Edwards   complied,      and,   after

restraining him, Stewart sprayed Edwards with the remainder of the

pepper gas. Subsequently, Stewart ordered that the cell door be

opened, grabbed Edwards, pushed him, and then hit him on the back

of the head several times with the spray can, causing Edwards to

fall to the floor.         While Edwards was on the floor covering his

face, Stewart hit him several more times with the can, causing cuts

to Edwards’ fingers. Stewart then kicked Edwards on the neck, head

and chest while he lay on the floor, causing Edwards to suffer from

neck   pain   and    headaches.           Edwards    alleges     that   the   kicking

continued until other officers arrived and stopped Stewart.

       Edwards’ alleged injuries consisted of neck pain, headache,

light abrasions and cuts to his thumb and two of the fingers on his

right hand, and superficial lacerations to his right ear.                          He

received treatment for his injuries at the infirmary.

       Edwards filed a complaint in forma pauperis.                He alleged that

Stewart had used excessive force against him in violation of the



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Eighth Amendment, and asserted state law claims for assault,

battery, and negligence.   Adopting the magistrate judge’s report

and recommendation which found that Edwards had failed to allege

that he sustained more than de minimis physical injury as a result

of Stewart’s alleged actions, the district court dismissed Edwards’

complaint pursuant to 42 U.S.C. § 1997e(e), without prejudice to

the state law claims.

                             DISCUSSION

     The core inquiry in evaluating an excessive force claim 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 (1992).        Where, as is the case

here, the plaintiff alleges that the force was applied maliciously

and sadistically to cause harm “there is no categorical requirement

that the physical injury be significant, serious, or more than

minor.”    Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999)

(emphasis added).   Nonetheless,     de   minimis   uses   of force are

excluded from constitutional recognition.     Hudson, 503 U.S. at 9.

     The magistrate’s report and recommendation, which the district

court adopted, concluded that Edwards’ alleged injuries were de

minimis.    Consequently, the district court found that Edwards’




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allegations    did    not    satisfy   the      requirement     of   a   showing    of

physical injury under 42 U.S.C. § 1997e(e).1

     In   finding     that    Edwards’        injuries   were   de   minimis,      the

magistrate judge relied on Siglar v. Hightower, 112 F.3d 191 (5th

Cir. 1997).        In Siglar, we applied the principles set out in

Hudson, holding that “well established Eighth Amendment standards

guide our analysis in determining whether a prisoner has sustained

the necessary physical injury to support a claim for mental or

emotional suffering.         That is, the injury must be more than de

minimus, [sic] but need not be significant.” Id. at 193.                      Given

that the plaintiff’s injuries in that case consisted of a sore,

bruised ear, for which Siglar did not seek medical treatment, and

which had resulted from a corrections officer twisting his ear, we

found that his injuries were de minimis and affirmed the dismissal

of his claims.       Id. at 194.

     But in Gomez we found that the plaintiff had alleged more than

de minimis physical injury where he had suffered “cuts, scrapes,

contusions to the face, head and body” as a result of being knocked

down, punched and kicked.          163 F.3d at 924-25.          Significantly, in

Gomez,    unlike    in   Siglar,    the    plaintiff     had    received    medical

treatment for his injuries.               Id. at 924.       In our analysis of


     1
        This section provides that “[n]o Federal civil action may be brought
by a prisoner confined in a jail, prison, or other correctional facility, for
mental or emotional injury suffered while in custody without a prior showing
of physical injury.”

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whether the injuries were de minimis, we also took into account

that the character of the attack on Siglar’s person “was obviously

far briefer and of a character far less intense and less calculated

to produce real physical harm than that here.”   Id.

     The plaintiff’s alleged injuries in this case are comparable

to the injuries in Gomez and much more severe than the injuries

alleged in Siglar.   Edwards’ alleged injuries consist of cuts to

his fingers and thumb, headache, neck pain, and lacerations to the

ear, and he received medical treatment for the injuries. Moreover,

Edwards’ injuries allegedly resulted from a highly intense attack

that was likely to produce serious physical harm: Edwards alleges

that he was repeatedly pushed to the floor, kicked, and beaten with

a can, in addition to being sprayed with pepper gas.   Given these

factual allegations, it cannot be said as a matter of law that

Edwards’ injuries were de minimis.

                             CONCLUSION

     Because, taking Edwards’ factual allegations as true, his

injuries were more than de minimis, the district court erred in

dismissing his federal claims.       Consequently, we REVERSE the

district court’s order, and REMAND for further proceedings.     Of

course, we express no view on the ultimate merit of the case.




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