     Case: 18-50148      Document: 00515103624         Page: 1    Date Filed: 09/04/2019




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

                                      No. 18-50148                         FILED
                                                                   September 4, 2019
                                                                      Lyle W. Cayce
DOUGLAS MCGUFFEY,                                                          Clerk

              Plaintiff - Appellant

v.

DAVID BLACKWELL, Individually and in His Official Capacity; GLENN
SKEEN, Individually and in His Official Capacity,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 6:17-CV-297


Before KING, HIGGINSON, and DUNCAN, Circuit Judges.
PER CURIAM:*
       Plaintiff Douglas McGuffey appeals the district court’s dismissal of his
Eighth Amendment excessive-force claim as frivolous. Because we find
McGuffey’s claim does not lack an arguable basis in law or fact, we REVERSE
and REMAND. McGuffey’s motion to appoint counsel is DENIED.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
     Case: 18-50148       Document: 00515103624         Page: 2     Date Filed: 09/04/2019



                                       No. 18-50148
                                              I.
       We recite the facts as they appear in the complaint, accepting them as
true, as we are required to do at this stage. Douglas McGuffey, proceeding pro
se, is a Texas inmate confined in the Hughes Unit. This case centers primarily
around an incident that took place on December 10, 2016. On that date,
correctional officer Glenn Skeen approached McGuffey while he was in the
dining hall waiting in line for dinner and “ran into McGuffey and started to
insult him.” McGuffey asked Skeen to stop, but Skeen continued to curse at
and threaten McGuffey. Later on during the meal, Skeen used a spoon to scoop
food from McGuffey’s tray and throw it on the floor. Skeen then dropped
McGuffey’s spoon on the floor and “jabbed him in the right shoulder really
hard.” McGuffey thereafter developed “a very dark bruise on his right
shoulder.” McGuffey says multiple inmates witnessed this incident and are
willing to verify his account.
       McGuffey filed a complaint under 42 U.S.C. § 1983 against Skeen and
David Blackwell, the senior warden at Hughes, in their individual and official
capacities. He alleged Skeen used excessive force in violation of his Eighth and
Fourteenth Amendment rights. 1 He also alleged that Blackwell put him in
danger by failing to remove Skeen from dining hall duties, despite his
complaints. McGuffey sought damages and an injunction.
       On its own initiative and before the defendants had been served, the
district court dismissed McGuffey’s complaint as frivolous under 28 U.S.C.
§ 1915(e). It first concluded that the damages claims against defendants in
their official capacities were barred by the Eleventh Amendment. Next, it
concluded that McGuffey’s claim against Blackwell failed because he did not


       1McGuffey’s initial complaint also details a later incident between Skeen and Joe
Louis Robinson, another inmate who was originally a plaintiff in this case. The district court
severed Robinson’s claims from McGuffey’s. Only McGuffey’s suit is presently before us.
                                              2
     Case: 18-50148       Document: 00515103624         Page: 3    Date Filed: 09/04/2019



                                      No. 18-50148
allege facts suggesting any causal connection between Blackwell’s conduct and
the violation of McGuffey’s constitutional rights. Finally, turning to McGuffey’s
excessive-force claim against Skeen, the district court concluded that
McGuffey’s allegations of verbal harassment could not state a claim for
excessive force. And it held that Skeen’s jabbing of McGuffey’s shoulder was
not actionable because Skeen caused only de minimis injuries, which, the
district court concluded, are not constitutionally cognizable. McGuffey appeals,
challenging the dismissal of his excessive-force claim against Skeen. 2 He has
also sought appointment of counsel in a separate motion that has been carried
with the case.
                                            II.
       The question before us is whether the district court erred in dismissing
McGuffey’s excessive-force claim against Skeen as frivolous. A district court
may dismiss a claim brought by a prisoner proceeding in forma pauperis “at
any time” if it determines that the claim “is frivolous or malicious.”
§ 1915(e)(2)(B)(i). A complaint is frivolous “where it lacks an arguable basis
either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). We
review dismissals under § 1915(e)(2)(B)(i) for abuse of discretion. Brewster v.
Dretke, 587 F.3d 764, 767 (5th Cir. 2009). “[A]n abuse of discretion standard
does not mean a mistake of law is beyond appellate correction, because [a]
district court by definition abuses its discretion when it makes an error of law.”
Kane v. Nat’l Union Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (second
alteration in original) (quoting Superior Crewboats, Inc. v. Primary P & I




       2  In his brief on appeal, McGuffey only discusses his excessive-force claim against
Skeen. As he does not discuss his claims against Blackwell, we treat those claims as waived.
See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993) (“Although we liberally construe the
briefs of pro se appellants, we also require that arguments must be briefed to be preserved.”
(quoting Price v. Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1988))).
                                             3
    Case: 18-50148     Document: 00515103624       Page: 4   Date Filed: 09/04/2019



                                   No. 18-50148
Underwriters (In re Superior Crewboats, Inc.), 374 F.3d 330, 334 (5th Cir.
2004)).
      McGuffey claims that Skeen used excessive force against him in violation
of the Eighth Amendment. Eighth Amendment excessive-force claims center
around “whether force was applied in a good faith effort to maintain or restore
discipline or maliciously and sadistically for the very purpose of causing harm.”
Hudson v. McMillian, 503 U.S. 1, 6 (1992) (quoting Whitley v. Albers, 475 U.S.
312, 320-21 (1986)). Several factors inform this inquiry, including:
      1. the extent of the injury suffered;
      2. the need for the application of force;
      3. the relationship between the need and the amount of force used;
      4. the threat reasonably perceived by the responsible officials; and
      5. any efforts made to temper the severity of a forceful response.
Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).
      The district court concluded that McGuffey’s excessive-force claim was
frivolous because Skeen’s use of force resulted only in a bruise to McGuffey’s
arm. An injury of such a degree, the district court held, cannot substantiate a
claim of excessive force. We disagree. Although “the absence of serious injury
is quite relevant to an excessive force inquiry,” that alone “does not . . . preclude
relief.” Id. As the Supreme Court has clarified on two occasions, the question
centers not around “whether a certain quantum of injury was sustained, but
rather ‘whether force was applied in a good-faith effort to maintain or restore
discipline, or maliciously and sadistically to cause harm.’” Wilkins v. Gaddy,
559 U.S. 34, 37 (2010) (quoting Hudson, 503 U.S. at 7); see also Hudson, 503
U.S. at 7 (“The absence of serious injury is . . . relevant to the Eighth
Amendment inquiry, but does not end it.”). To be sure, “not ‘every malevolent
touch by a prison guard gives rise to a federal cause of action.’” Wilkins, 559
U.S. at 37 (quoting Hudson, 503 U.S. at 9). Nonetheless, “[i]njury and force . . .
                                         4
     Case: 18-50148      Document: 00515103624        Page: 5     Date Filed: 09/04/2019



                                     No. 18-50148
are only imperfectly correlated, and it is the latter that ultimately counts. An
inmate who is gratuitously beaten by guards does not lose his ability to pursue
an excessive force claim merely because he has the good fortune to escape
without serious injury.” Id. at 38.
       The district court therefore erred in concluding that McGuffey’s
excessive-force claim was frivolous for the mere reason that he received only a
bruise following Skeen’s jab. To dismiss an excessive-force claim as frivolous,
a district court may not simply note the plaintiff’s injury, find a case involving
a similar injury, and stop. Instead, the district court must go through the
analysis discussed above, considering injury as only one facet of a broader
inquiry.
       Making this broader inquiry, McGuffey’s claim plainly has at least some
basis in law or fact. Although the injury suffered by McGuffey was not
substantial, other factors weigh in his favor: nothing in the complaint suggests
that McGuffey posed any threat to Skeen, nor does it appear from the
complaint that the force Skeen used was otherwise necessary. We express no
opinion on the ultimate merits of this question. Instead, we say only that
McGuffey’s claim as pled is not frivolous. And because dismissal below was for
frivolity, we must reverse. 3




      3 McGuffey has also requested that this court appoint him counsel. Because McGuffey
has successfully argued his case without the assistance of counsel, we deny his motion. See
Delaughter v. Woodall, 909 F.3d 130, 140 (5th Cir. 2018) (listing among factors relevant to
appointment of counsel in a civil case, “whether the indigent is capable of adequately
presenting his case” (quoting Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982))). We
express no view on whether the district court should grant the motion for appointment of
counsel filed by McGuffey below, which remained pending at the time McGuffey filed this
appeal.
                                            5
   Case: 18-50148   Document: 00515103624   Page: 6   Date Filed: 09/04/2019



                             No. 18-50148
                                  III.
    For the reasons set forth above, the judgment of the district court is
REVERSED and REMANDED. McGuffey’s motion to appoint counsel is
DENIED.




                                   6
