           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                                                                 F I L E D
                                       No. 05-20687                             September 5, 2007

                                                                              Charles R. Fulbruge III
                                                                                      Clerk
DALE KEITH PAYNE,

                                                  Plaintiff – Appellant,
v.

JIMMY PARNELL, Correctional Officer; TERRY PICKETT,
Captain; BRIAN BUCK, Captain; PRISCILLA DALY,
Grievance Officer; RICHARD THALER, Warden,

                                                  Defendants – Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. H-03-4294


Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Dale Keith Payne, Texas prisoner #594370, filed this civil rights action
under 42 U.S.C. § 1983 against prison officers Jimmy Parnell, Terry Pickett,
Brian Buck, Priscilla Daly, and Richard Thaler. Payne claimed that Parnell
violated the Eighth Amendment by subjecting him to excessive force with a




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 05-20687
cattle prod and threatening him with a knife, and that Pickett, Buck, Daly,1 and
Thaler did so by failing to supervise Parnell, protect Payne from Parnell, and
investigate the matter adequately.       The district court granted summary
judgment in favor of all defendants, and Payne now appeals. As to the excessive
force claim against Parnell based on the cattle prod incident, we VACATE the
summary judgment dismissal and REMAND for further proceedings; in all other
respects we AFFIRM.
     I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
      This case arises out of an altercation between Texas inmate Dale Keith
Payne and corrections officer Jimmy Parnell. In October of 2002, Payne was
working at his prison job at the back gate of the Estelle Unit. A horticulture
truck had just entered the back gate area, and Payne raised the truck’s hood to
allow it to be to be searched by a guard. While Payne was in this position
Parnell approached him from the rear and, without provocation, shocked him in
the back with a cattle prod that he had found in the truck’s cab. The shock from
the cattle prod produced a painful reaction in Payne, causing him to “jump[] and
holler[],” and left a mark on Payne’s back. Parnell then chased Payne around
a nearby office building in an attempt to shock him again. Payne sought refuge
in a bathroom, at which point Parnell attempted to shock him through the door
of the bathroom by using the door handle to transmit the electricity from the
cattle prod. After a later incident in which Parnell allegedly threatened Payne
with a knife, Payne reported both incidents to Terry Pickett, a security captain.
Payne also filed a grievance against Parnell. Defendants Brian Buck and
Richard Thaler were involved in the grievance process as security captain and
warden, respectively.




      1
        Payne named Daly as a defendant in his initial complaint, but a summons was
apparently never issued for her.

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      The matter was subsequently referred to the Texas Department of
Criminal Justice (TDCJ) Office of the Inspector General (OIG), which is
independent of the normal TDCJ chain of command. When first interviewed by
an OIG investigator, Parnell denied that he had shocked Payne with a cattle
prod at all. Payne and another inmate who witnessed the incident were then
subjected to polygraph examinations, which they both passed. The investigator
also obtained a statement from a guard who had witnessed the incident and
confirmed that Parnell touched Payne with a cattle prod. After being informed
of these developments, Parnell admitted that Payne’s allegations concerning the
cattle prod were true. In a written statement, he explained that he “did touch
offender Payne with [a cattle prod] in a joking manner and did not know it would
shock him.” Parnell also admitted to having a knife in the back gate area, but
he said he never threatened Payne with it. The OIG report concluded that in
shocking Payne with the cattle prod, Parnell committed “reckless conduct” in
violation of a prison personnel rule. Parnell was suspended for two days without
pay and placed on probation for ninety days.         The investigation found
insufficient evidence to support Payne’s allegation that Parnell threatened him
with a knife.
      Payne then brought this § 1983 suit, claiming that Parnell’s actions and
threats constituted the use of excessive force against him in violation of the
Eighth Amendment. Pickett, Buck, and Thaler were joined as defendants on the
theory that they failed to supervise Parnell, protect Payne from Parnell, and
investigate the grievance against Parnell adequately. The district court granted
summary judgment in favor of the defendants and dismissed the case. Payne
appeals the grant of summary judgment, and also argues that the district court
abused its discretion in denying his request for appointed counsel, refusing to




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                                       No. 05-20687
allow him to amend his complaint, and failing to conduct a hearing pursuant to
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).2
                                    II. DISCUSSION
A.     Standard of Review
       We review a grant of summary judgment de novo, viewing all evidence in
the light most favorable to the nonmoving party and drawing all reasonable
inferences in that party’s favor. See Crawford v. Formosa Plastics Corp., 234
F.3d 899, 902 (5th Cir. 2000). “Summary judgment is proper when the evidence
reflects no genuine issues of material fact and the non-movant is entitled to
judgment as a matter of law.” Id. (citing FED. R. CIV. P. 56(c)). “A genuine issue
of material fact exists ‘if the evidence is such that a reasonable jury could return
a verdict for the non-moving party.’” Id. (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
B.     Payne’s Excessive Force Claim Against Parnell
       “[T]he settled rule [is] that ‘the unnecessary and wanton infliction of
pain . . . constitutes cruel and unusual punishment forbidden by the Eighth
Amendment.’” Hudson v. McMillian, 503 U.S. 1, 5 (1992) (quoting Whitley v.
Albers, 475 U.S. 312, 319 (1986)). In the context of an allegation of the use of
excessive force by a prison official, “the core judicial inquiry is . . . whether force
was applied in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 7. “In determining whether the use of
force [by a prison guard] was wanton and unnecessary,” the court considers “the
extent of [the] injury suffered,” “the need for [the] application of force, the



       2
         Although Payne refers in passing to his claim that Parnell threatened him with a
knife, his brief contains no argument relating to this issue. We do not construe his brief as
pursuing this claim on appeal. See Yohey v. Collins, 985 F.2d 222, 224–24 (5th Cir. 1993)
(although pro se briefs are liberally construed, arguments must be briefed to be preserved for
appeal).


                                              4
                                   No. 05-20687
relationship between that need and the amount of force used, the threat
reasonably perceived by the responsible officials, and any efforts made to temper
the severity of a forceful response.” Id. (citing Whitley, 475 U.S. at 321) (internal
quotation marks omitted).
      The Supreme Court has recognized that the Eighth Amendment includes
an “objective component”: in considering a prisoner’s claim, the court must ask
“if the alleged wrongdoing was objectively ‘harmful enough’ to establish a
constitutional violation.” Id. at 8 (quoting Wilson v. Seiter, 501 U.S. 294, 298
(1991)). The objective component of the Eighth Amendment is “contextual,” id.;
whereas a conditions-of-confinement claim requires “extreme deprivations” to be
cognizable, in the excessive-force context, “[w]hen prison officials maliciously and
sadistically use force to cause harm,” the Eighth Amendment is violated
“whether or not significant injury is evident.” Id. at 9. “That is not to say that
every malevolent touch by a prison guard gives rise to a federal cause of action.”
Id. “The Eighth Amendment’s prohibition of ‘cruel and unusual’ punishments
necessarily excludes from constitutional recognition de minimis uses of physical
force, provided that the use of force is not of a sort ‘repugnant to the conscience
of mankind.’” Id. at 9–10 (quoting Whitley, 475 U.S. at 327).
      We first consider whether Payne has demonstrated the existence of a fact
issue on the question of whether Parnell applied the electric shock from the
cattle prod “in a good-faith effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” See id. at 7. The district court concluded that
Parnell was entitled to summary judgment because it determined that he was
acting “jokingly,” or in “horseplay,” and did not know the cattle prod was
charged. We conclude, however, that a reasonable jury could determine that
Parnell acted maliciously and sadistically in unnecessarily and wantonly
inflicting pain on Payne.



                                         5
                                  No. 05-20687
      When the cattle prod incident occurred, Payne was merely working at his
prison job; there is no allegation that he caused any disruption or in any way
violated a prison rule. He was facing away from Parnell and, in the process of
raising and supporting the truck’s hood, was in a relatively vulnerable position.
He did nothing to provoke Parnell’s actions, and there is no evidence that
Parnell had any reason to reasonably perceive a threat from Payne.
Consequently, a rational jury could find that there was no need for the
application of any force in this situation, much less the amount of force actually
administered, an electric shock from a cattle prod.
      Furthermore, assuming arguendo that Payne may not proceed if Parnell
was acting “jokingly,” or in “horseplay,” and did not know the cattle prod was
charged when he delivered the electric shock, there is sufficient circumstantial
evidence in the record from which a reasonable jury could disbelieve this
explanation. After Parnell delivered the initial shock, he chased Payne around
a building and into a bathroom in an effort to shock him further. Additionally,
Payne submitted an affidavit from another inmate, who was also interviewed by
the OIG investigator and given a polygraph examination, that detailed other
occasions when Parnell had struck Payne unnecessarily.            This evidence
substantiates Payne’s allegations that he had been subjected to a history of
abuse and harassment at the hands of Parnell prior to the cattle prod incident,
and supports an inference that Parnell intended to harm Payne. Finally, Parnell
initially lied about the incident by denying that it had ever occurred; only when
informed that another guard had witnessed it and that Payne and the other
inmate had passed polygraphs did Parnell tell the investigator that he had in
fact shocked Payne, but “only in a joking manner.” On this record, a rational
jury could determine that in shocking Payne, Parnell acted maliciously and
sadistically to cause harm.




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                                       No. 05-20687
       The more difficult issue is whether the alleged wrongdoing in this case was
objectively “harmful enough” to establish a constitutional violation. See Hudson,
503 U.S. at 8. To support an 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.”3 Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.
1999). “In determining whether an injury caused by excessive force is more than
de minimis, we look to the context in which that force was deployed.” Williams
v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999). “[T]he amount of injury necessary
to satisfy our requirement of ‘some injury’ and establish a constitutional
violation is directly related to the amount of force that is constitutionally
permissible under the circumstances.” Id. at 703–04 (quoting Ikerd v. Blair, 101
F.3d 430, 434 (5th Cir. 1996)). Payne received an electric shock from a cattle
prod, which caused an immediate sensation of pain and left a mark on his back.
The district court determined that his injury from the cattle prod was de
minimis. We disagree.
       Relying on Siglar v. Hightower, 112 F.3d 191 (5th Cir. 1997), the
defendants argue that Payne can not show a physical injury sufficient to support
his excessive force claim. In Siglar, the prisoner was stopped in the hall of his
prison unit while returning from breakfast. 112 F.3d at 193. The guard found
a biscuit in the prisoner’s jacket pocket and called for backup.                    Id.   The
responding guard, “[w]ithout provocation, . . . twisted Siglar’s arm behind his
back and twisted Siglar’s ear.” Id. “Siglar’s ear was bruised and sore for three
days but he did not seek or receive medical treatment for any physical injury


       3
         We have also recognized the possibility under Hudson that even a de minimis physical
injury may be sufficient for Eighth Amendment purposes if the force used is “of a sort
repugnant to the conscience of mankind.” See Gomez, 163 F.3d at 324 n.4. Since we conclude
that the use of force here was not de minimis, we need not resolve the question of whether the
use of a cattle prod on a prisoner is force “of a sort repugnant to the conscience of mankind.”

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                                        No. 05-20687
resulting from the incident.” Id. We affirmed the dismissal of his complaint,
concluding that he had not suffered a “physical injury” under the Prison
Litigation Reform Act, 42 U.S.C. § 1997e(e), because his injury was de minimis
under the Eighth Amendment. Id. at 193–94. The defendants contend that
Payne’s injuries from the cattle prod shock likewise did not result in long-term
damage requiring medical treatment. It is clear, however, that the lack of any
long-term damage is not dispositive on the question of whether Payne’s injury
was de minimis. In Gomez, for example, in concluding that a prisoner’s injury
was not de minimis, we distinguished Siglar not only on the extent of the
physical injury that actually resulted, but also on the fact that the “application
of force” was “of a character far [more] intense and [more] calculated to produce
real physical harm,” Gomez, 163 F.3d at 924, as it was here.
       Moreover, we have made it clear that the amount of injury required “is
directly related to the amount of force that is constitutionally permissible under
the circumstances.” Williams, 180 F.3d at 704 (internal citations and quotations
omitted). In Williams, an individual detained by police officers brought an
excessive force claim against an officer who allegedly choked him twice, once in
the course of a search of the plaintiff’s mouth and once shortly thereafter in
response to his complaining about the first choking.4 Id. at 703. The plaintiff’s
alleged injuries from each choking were identical: “fleeting dizziness, temporary
loss of breath and coughing.” Id. at 704. Since “[i]n determining whether an
injury caused by excessive force is more than de minimis, we look to the context
in which the force was deployed,” id. at 703, we evaluated each injury separately.


       4
          The claim in Williams was based on the Fourth Amendment, but the analysis in that
case is relevant here because a claim of excessive force by a law enforcement officer is analyzed
under the same standard regardless of whether it arises under the Fourth Amendment or the
Eighth Amendment. See Ikerd, 101 F.3d at 434 n.9 (“[A]ny force exerted by a law enforcement
officer that would be objectively reasonable under [the Fourth Amendment] would also be de
minimis under Hudson. Similarly, any force that would be objectively unreasonable under [the
Fourth Amendment] would not fall within the de minimis language in Hudson.”).

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                                   No. 05-20687
We determined that the injuries resulting from the first choking were not
constitutionally cognizable because they occurred during a search of the
plaintiff’s mouth for drugs. Id. at 704. With respect to the second choking,
however, identical injuries were more than de minimis, because the second
choking “was motivated entirely by malice” and because the officer was not
“legitimately exercising force in the performance of his duties as an officer.” Id.
      We think the facts of Payne’s case are more akin to Williams than Siglar.
The application of the electric shock from the cattle prod was at least as serious
as the choking that caused “fleeting dizziness, temporary loss of breath and
coughing” in Williams. Additionally, unlike in Siglar, where the prisoner was
found with contraband, there is no evidence that Payne was violating any prison
rule or that any use of force was necessary. We conclude that the deliberate,
unnecessary application of an electric shock from a cattle prod in this case
resulted in more than de minimis injuries. Cf. Brown v. Hughes, 894 F.2d 1533,
1538 (11th Cir. 1990) (“Deliberately inflicted pain, as with an electric cattle prod,
does not become unimportant and unactionable under the eighth amendment
simply because the pain produced is only momentary.”).
C.    Payne’s Claims Against Pickett, Buck, and Thaler
      The district court granted summary judgment against Payne on his claims
that Pickett, Buck, and Thaler failed to supervise Parnell, protect Payne from
Parnell, and investigate the matter adequately. We conclude that the grant of
summary judgment on these claims was proper.
       To hold a supervisory official liable for the acts of a subordinate, Payne
must show that “(1) the supervisor either failed to supervise or train the
subordinate official; (2) a causal link exists between the failure to train or
supervise and the violation of the plaintiff’s rights; and (3) the failure to train or
supervise amounts to deliberate indifference.” Smith v. Brenoettsy, 158 F.3d
908, 911–12 (5th Cir. 1998). To state a failure to protect claim under § 1983,

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                                        No. 05-20687
Payne must show that he is incarcerated under conditions posing a substantial
risk of serious harm and that prison officials were deliberately indifferent to his
need for protection. Neals v. Norwood, 59 F.3d 530, 533 (5th Cir. 1995). For an
official to act with deliberate indifference for purposes of either claim, he “must
both be aware of facts from which the inference could be drawn that substantial
risk of serious harm exists, and he must also draw the inference.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
       The record in this case contains affidavits from Pickett, Buck, and Thaler
stating that they were unaware of any substantial risk posed to Payne by
Parnell prior to the incidents in question, and that once informed they took
appropriate action, which ultimately led to the investigation conducted by the
OIG. Payne has not put forward any evidence to controvert the defendants’
affidavits; indeed, his own pleadings indicate that he did not inform prison
officials of his problems with Parnell until after the second incident. Summary
judgment was therefore appropriate, as no genuine issue of material fact
relating to the alleged deliberate indifference of Pickett, Buck, and Thaler is
evident from the record.5
D.     Other Issues
       Payne also argues that the district court abused its discretion in denying
his request for appointed counsel, failing to allow him to amend his complaint,
and refusing to conduct a Spears hearing.
       A court is not required to appoint counsel to an indigent plaintiff in a
§ 1983 case unless there are exceptional circumstances. Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982). Factors to consider in ruling on a request for


       5
         Insofar as Payne asserts an alleged violation of due process in the prison grievance
process, the district court did not err in determining that Payne had no legal interest in having
the dispute resolved to his satisfaction. See Geiger v. Jowers, 404 F.3d 471, 373–74 (5th Cir.
2005). The record also indicates that an investigation was conducted, and that Parnell was
subsequently disciplined.

                                               10
                                    No. 05-20687
appointment of counsel include: (1) the type and complexity of the case; (2) the
indigent’s ability to adequately investigate and present the case; (3) the presence
of evidence which largely consists of conflicting testimony so as to require skill
in presentation of evidence and cross-examination; and (4) the likelihood that
appointment of counsel will benefit the parties and the court.               Parker v.
Carpenter, 978 F.2d 190, 193 (5th Cir. 1992); see Ulmer, 691 F.2d at 213.
Although the record does contain conflicting testimony as to Parnell’s intentions
in shocking Payne, at the summary judgment stage concerns about effective
cross-examination have not yet been implicated, and as the facts of this case are
not unusually complex, Payne’s presentation has to this point been adequate.
The district court thus did not abuse its discretion in denying appointment of
counsel.6
      With regard to the argument that the district court abused its discretion
in not allowing an amendment to his complaint prior to the filing of the
defendants’ motion for summary judgment, Payne has failed to show any error;
the record contains no indication that he attempted to amend his complaint, or
that any amendment was improperly refused.
      Finally, Payne argues that the district court should have conducted a
Spears hearing, which is a device that allows the court to remedy any factual or
legal inadequacies in a prisoner’s pleadings. See Eason v. Thaler, 14 F.3d 8, 9
(5th Cir. 1994). To determine whether the district court abused its discretion in
failing to hold a Spears hearing, we first inquire if any insufficiencies in Payne’s
allegations might have been remedied with the opportunity for additional factual
development. Id. Payne’s initial complaint adequately outlined the factual
bases for his claims, and he also had an opportunity to respond to the


      6
          We express no opinion regarding whether on remand Payne should have counsel
appointed to assist him in further pursuing his § 1983 claim relating to the cattle prod
incident.

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                                  No. 05-20687
defendants’ motion for summary judgment. On appeal he has not identified any
additional facts that he would have presented at a Spears hearing; the
averments in his brief and reply brief largely mirror information already
contained within the record that was available at summary judgment. The
district court did not abuse its discretion in failing to hold a Spears hearing.
                                III. Conclusion
      We VACATE the grant of summary judgment with respect to Payne’s
excessive force claim against Parnell based on the cattle prod incident and
REMAND for further proceedings; in all other respects the judgment of the
district court is AFFIRMED.




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