                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 09-6537


ROBERT PEOPLES,

                  Plaintiff - Appellant,

          v.

PORTER MCKNIGHT, Corporal,

                  Defendant - Appellee,

          and

SCDC; GEORGE HAGAN; SCDC DIRECTOR JON OZMINT; MAJOR BERNARD
WALKER; IGC KEN LONG; NFN DUBOSE, Captain; LIEUTENANT ISIAH
CANN; CORY JOHNSON, Officer; LATASHA GRANT, Officer; ERIC
WILLIAMS, Officer; DARRELL TYLER, Lieutenant; SYLVIA RAWLS,
Nurse; RAPID RESPONSE TEAM, All in their individual and
official capacities,

                  Defendants.



Appeal from the United States District Court for the District of
South Carolina, at Anderson.   Cameron McGowan Currie, District
Judge. (8:07-cv-01203-CMC)


Submitted:   March 30, 2010                   Decided:   April 13, 2010


Before WILKINSON, MICHAEL, and KING, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Robert Peoples, Appellant Pro Se.    Andrew Todd Darwin, Ginger
Goforth, HOLCOMBE, BOMAR, GUNN &     BRADFORD, PA, Spartanburg,
South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             Pursuant to 42 U.S.C. § 1983 (2006), Robert Peoples, a

South Carolina state inmate, filed a complaint alleging that

Defendants violated his civil rights during an incident that

occurred at the Allendale Correctional Institution on April 22,

2004.      Peoples     alleged     that     Defendants         used    excessive          force

against him when they sprayed riot gas into his cell following a

disturbance on his wing and then were deliberately indifferent

to his resulting serious medical needs.

             Claims against all Defendants except Corporal Porter

McKnight, the corrections officer who actually sprayed the gas,

were dismissed prior to trial.                  During the course of the trial,

the district court dismissed the deliberate indifference claim.

The   jury    returned      a     verdict       in   favor     of     McKnight       on    the

excessive     force    claim.           Peoples      timely    appealed.         For        the

reasons that follow, we affirm in part, vacate in part, and

remand for further proceedings.

             Peoples    contends         that     the   district       court     erred       by

dismissing     his    deliberate         indifference         claim    before     all      the

evidence     was   presented       at    trial.         A   careful     review       of    the

pleadings     reveals      that    Peoples       did    not    assert     a    deliberate

indifference       claim     against        McKnight.           Because        all    other

Defendants were dismissed from the action prior to trial and

Peoples does not challenge their dismissal, we conclude that the

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district       court    properly       declined    to     hear    evidence     on    the

deliberate indifference claim.

               Peoples next argues that the district court failed to

properly instruct the jury on excessive force.                     The court based

the instruction given to the jury on Fourth Circuit precedent

established by Norman v. Taylor, 25 F.3d 1259 (4th Cir. 1994)

(en banc), and its progeny.              In Norman, 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.        After Peoples filed his appeal, the

Supreme Court overruled Norman, holding that, while the extent

of    an    inmate’s    injury    is    relevant    in    assessing      an   excessive

force claim, the “core judicial inquiry” in an excessive force

claim focuses on the nature of the force.                   Wilkins v. Gaddy, 130

S. Ct. 1175, ___, 2010 WL 596513, at *3 (2010).

               Accordingly, we vacate the judgment as it pertains to

the    excessive       force   claim     against    McKnight,      and    remand     for

further proceedings in light of Wilkins v. Gaddy.                        The district

court’s judgment is affirmed in all other respects.                           Peoples’

motions      for    appointment    of    counsel    and    for    preparation       of   a

transcript at Government expense are denied.                      We dispense with

oral       argument    because    the    facts     and    legal    contentions       are




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adequately   presented   in   the   materials   before   the   court   and

argument would not aid the decisional process.

                                                     AFFIRMED IN PART,
                                                      VACATED IN PART,
                                                          AND REMANDED




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