               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 97-40533
                         Summary Calendar



                          HORACE JEFFERY

                                           Plaintiff-Appellant,

                              versus

         MICHAEL SAUSEDA, Correctional Officer, Beto I,

                                           Defendant-Appellee.

                       - - - - - - - - - -
          Appeal from the United States District Court
                For the Eastern District of Texas
                          (6:96-CV-290)
                       - - - - - - - - - -

                     ON PETITION FOR REHEARING
                           March 27, 1998

Before DUHÉ, DeMOSS, DENNIS, Circuit Judges

PER CURIAM:*

     Appellee Michael Sauseda’s petition for rehearing is denied.

Our panel decision is withdrawn and the following opinion is

substituted.

     Horace Jeffery, Texas prisoner # 669340, filed a civil rights

complaint pursuant to 42 U.S.C. § 1983 against Texas Department of

Criminal Justice - Institutional Division (TDCJ-ID) guard Michael

Sauseda alleging that Sauseda used excessive force against him when

     *
      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this opinion should not be published and is not precedent except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. 97-40533
                                   -2-

Sauseda came to escort Jeffery to a disciplinary hearing. Prior to

the filing of an answer, Jeffery filed a jury demand in compliance

with Rule 38(b) of the Federal Rules of Civil Procedure.                   The

magistrate judge issued an order scheduling a bench trial.                 This

proceeding was subsequently referred to as an evidentiary hearing

under Flowers v. Phelps, 956 F.2d 488 (5th Cir. 1992), in the

clerk’s minute entry, the magistrate judge’s report, and the

judgment of the district court. Based on the evidence presented at

this hearing, the magistrate judge recommended that Jeffery’s

action be dismissed.    Jeffery specifically objected to having the

trial conducted without a jury.         The district court adopted the

magistrate judge’s recommendation and dismissed Jeffery’s complaint

with prejudice without mention of the possible denial of Jeffery’s

right to a jury.    Jeffery appeals arguing, inter alia, that he was

erroneously denied a jury trial.

     This court has stated       “the    right   to    a   jury   trial is a

fundamental right,” and “courts should indulge every reasonable

presumption against waiver.” McAfee v. Martin, 63 F.3d 436, 437-38

(5th Cir. 1995)(internal quotations and citations omitted). Having

considered the briefs and the relevant parts of the record, we

conclude   that    Jeffery   properly   requested      a   jury    trial   and

subsequently did not waive his jury demand by participating in the

Flowers hearing without objection.       See id.      at 437-38.

     This does not end our inquiry for we must decide whether the

error in denying Jeffery jury trial was harmless.           See McDonald v.
                           No. 97-40533
                                -3-

Steward, 132 F.3d 225,230 (5th Cir. 1998).       “‘[T]he error is

harmless if the evidence could not have withstood a motion for a

directed verdict.’” Id. (quoting Lewis v. Thigpen, 767 F.2d 252,

260 (5th Cir. 1985)).   A directed verdict should be granted “‘[i]f

the facts and inferences point so strongly and overwhelmingly in

favor of one party that the Court believes that reasonable men

could not arrive at a contrary verdict.’” Id. (quoting Boeing v.

Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc)).

     To prevail on an Eighth Amendment claim of excessive force, a

plaintiff must establish “that force was not ‘applied in a good

faith effort to maintain or restore discipline, [but] maliciously

and sadistically to cause harm’ and that he suffered an injury.”

Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996)(quoting Hudson

v. McMillian, 503 U.S. 1, 7 (1992)).

     The evidence presented at the Flowers hearing shows the

following. On August 17, 1995, Officer Sauseda and another officer

arrived at Jeffery’s cell to escort Jeffery to a disciplinary

hearing. Jeffery was searched and handcuffed. As Sauseda prepared

to escort Jeffery out of the cell, Jeffery reached for papers that

were on his bunk.   Sauseda asked to see the papers.     There was

conflicting testimony on the events that followed.

     The plaintiff testified that Sauseda grabbed the papers from

his hand and read the papers.     Jeffery said he protested that

Sauseda had no right to read his legal papers and requested a

ranking officer.    According to Jeffery, Officer Sauseda then
                               No. 97-40533
                                    -4-

grabbed Jeffery by the neck, pushed him into the third floor

railing, and threatened to throw him over the rail.          Sauseda then

pushed Jeffery into the wall and the cell door and pinned Jeffery

down by pressing his elbow into the back of Jeffery’s neck.

     Officer Sauseda paints a different picture of events. Sauseda

testified that he requested to see the papers.               According to

Sauseda, Jeffery became belligerent.          Jeffery initially refused to

give the papers to Sauseda, but ultimately complied.         Sauseda then

scanned the papers, determined that they were legal in nature, and

returned the papers to Jeffery.           According to Officer Sauseda,

Jeffery then charged towards Sauseda as they exited the cell and

pushed   him   against   the   third    row   railing.   Officer   Sauseda

testified that he feared that Jeffery would push him over the third

floor rail or throw himself over the rail.         Sauseda reached around

the front of Jeffery, grabbed Jeffery’s forearm, turned Jeffery

around, and pinned him against the cell door and wall.             Sauseda

held Jeffery until his ranking officer and the video camera he had

requested arrived.

     Inmate Ricky Allen Demerson testified as a witness for the

plaintiff.     In part, Demerson testified that he heard Jeffery tell

Sauseda not to read his papers.        He also heard Sauseda respond that

he had a right to read the papers.        According to Demerson, Sauseda

then grabbed Jeffery and slammed him against the wall and the cell

door.    Demerson did not see Jeffery charge towards Sausdea or

threaten Sauseda. Demerson said he heard Jeffery ask Officer Allen
                                  No. 97-40533
                                       -5-

to get a ranking officer. Demerson testified that Sauseda hit

Jeffery on the back of the neck with his elbow in an attempt to

hurt him.

     The    plaintiff’s     medical    records     were    introduced     by   the

defendant.

     From a review of the evidence presented at the hearing, we

conclude that the record could support a finding that Officer

Sauseda’s use of force against Jeffery was “‘not . . . in a good-

faith effort to maintain or restore discipline, [but] maliciously

and sadistically to cause harm.’”            Id.   However, Jeffery must also

show that he suffered some injury.              See Knight v. Caldwell, 970

F.2d 1430, 1432 (5th Cir. 1992), cert. denied, 507 U.S. 926 (1993).

As this court has noted:

            The   Supreme        Court’s     decision     [in   Hudson   v.

     McMillian, 503 U.S. 1(1992)] makes clear that we can no

     longer require persons to prove “significant injury,” as

     we had used that term for years, under section 1983.                The

     Court’s holding, however, does not affect the rule that

     requires     proof     of     injury,     albeit     significant    or

     insignificant.       In fact, the Supreme Court specifically

     denied constitutional protection for “de minimis use of

     physical force, provided that the use of force is not of

     a sort repugnant to the conscience of mankind.” Hudson,

     503 U.S. at ---.
                             No. 97-40533
                                  -6-

Id.   The only evidence submitted at the hearing on this issue was

Jeffery’s medical records.2 The medical records show that, on the

date of the use of force, Jeffery complained that his handcuffs

were too tight.     The examining nurse could find no injury.         The

medical records also show that, four days after the use of force,

Jeffery was brought to the infirmary complaining of back pain.         On

the sixth and seventh day following the use of force, Jeffery was

brought to the infirmary complaining that he was experiencing

nausea and headaches and was spitting up blood as a result of the

use of force.   From a review of this evidence we cannot say that a

reasonable   jury    could   not   find   that   Jeffery   suffered    a

constitutionally cognizable injury. Compare Flowers v. Phelps, 956

F.2d 488 (5th Cir. 1992) (moderate swelling and probable sprain of

ankle, small abrasion, and a limited range of motion due to pain

not de minimis injury), modified on other grounds, 964 F.2d 400

(5th Cir. 1992), with Siglar v. Hightower, 112 F.3d 191, 193 (5th




      2
          At the Spears hearing, the magistrate asked Jeffery
what injury he had sustained as a result of the use of force.
Jeffery stated that he had experienced numbness in his arm caused
by the handcuffs being too tight. He also testified that he had
experienced headaches, lower back pain, and numbness from being
slammed against the wall and from having Sauseda’s elbow pressed
to the back of Jeffery’s neck. (Jeffery indicated that Sauseda’s
acts may have aggravated an existing injury, a bullet lodged in
the back of Jeffery’s neck.) The magistrate then asked a nurse
to read Jeffery’s medical records for August 17, 1995. The
medical records indicated that Jeffery was examined immediately
following the use of force and was found to have suffered no
injury. At the hearing that followed, Jeffery presented no
evidence of injury. Defendant-Sauseda introduced Jeffery’s
medical records.
                            No. 97-40533
                                 -7-

Cir. 1997) (sore, bruised ear that lasted for three days was de

minimis injury).

     Accordingly, we conclude that Jeffery presented sufficient

evidence to withstand a motion for a directed verdict on his Eighth

Amendment claim.      The error in denying a jury trial was not

harmless.

     For the foregoing reasons, the judgment of the district court

is REVERSED.    Jeffery has requested counsel be appointed on appeal

and has requested that he be granted a default judgment because the

defendant’s brief was late under Rule 31 of the Federal Rules of

Appellate Procedure.     Neither motion is well taken and both are

DENIED. Jeffery also moves to supplement the record on appeal.

That motion is DENIED because it contains materials not presented

to the district court.     See United States v. Okoronkwo, 46 F.3d

426, 435 (5th Cir.), cert. denied, -- U.S. --, 116 S. Ct. 107

(1995).     Sauseda’s motion to supplement the record on appeal to

include exhibits presented to the district court is GRANTED.
