                                                     United States Court of Appeals
                                                              Fifth Circuit
                                                           F I L E D
                   UNITED STATES COURT OF APPEALS
                            FIFTH CIRCUIT                  March 16, 2007

                                                       Charles R. Fulbruge III
                                                               Clerk
                            No. 04-41696


                          LORENZO THOMAS,

                                               Plaintiff-Appellee,

                               versus

                   JACKSON COMSTOCK, Lieutenant,

                                              Defendant-Appellant.


          Appeal from the United States District Court
                for the Eastern District of Texas
                           (9:99-CV-333)


Before JONES, Chief Judge, and WIENER and BARKSDALE, Circuit

Judges.

PER CURIAM:*

     This action, brought pursuant to 42 U.S.C. § 1983 by then-

inmate Lorenzo Thomas, claims Lieutenant Jackson Comstock used

excessive force.   Thomas appeared pro se at trial and was awarded

one dollar in damages.     His appeal was dismissed for want of

prosecution. On the other hand, Lieutenant Comstock appeals, inter

alia, the denial of judgment as a matter of law (JML), premised on




     *
      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this opinion should not be published and is not precedent except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.

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qualified immunity (QI).     Thomas has not filed a brief in response.

 VACATED and RENDERED.

                                   I.

     After spending the 15-day maximum term in solitary confinement

in July 1996, Thomas was ordered to move to his new prison-housing

assignment.   He refused to do so, claiming other inmates housed in

the designated building posed a danger to his life.      Major Hickson,

a supervisor at the prison, was notified of Thomas’ refusal to

leave solitary confinement.      Aware of Thomas’ concerns about his

housing assignment, Major Hickson ordered Lieutenant Comstock to

move Thomas, authorizing the use of force, if necessary: Oleoresin

Capsicum spray (OC spray) and/or a five-man response team.

     Lieutenant   Comstock     ordered   Thomas   to   submit   to   hand

restraints to allow him to be moved.       Thomas refused, even after

being told Lieutenant Comstock was authorized to use force to

achieve compliance.      Before using force, Lieutenant Comstock:

obtained a video camera to record his and Thomas’ interaction;

telephoned the medical department and obtained clearance to use the

OC spray against Thomas; telephoned the psychological department to

verify Thomas had no mental health restrictions; and had medical

personnel and the five-man response team in place.

     Lieutenant Comstock then advised Thomas he was going to be

sprayed; in response, Thomas covered his face with his shirt.




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Lieutenant Comstock administered an approximately 1.8-ounce burst

of OC spray.

     Shortly thereafter, Thomas submitted to hand restraints and

was moved to the infirmary, where he was allowed to shower to

remove any chemical residue.        The use-of-force injury report notes

Thomas   made   no   complaints     and       received   no    medical      treatment

following administration of the OC spray.

     Thomas     filed   this    action        pursuant   to    §    1983,    claiming

Lieutenant Comstock’s OC-spray use constituted excessive force, in

violation of the Eighth and Fourteenth Amendments.                       After various

delays, including an interlocutory appeal, a two-day trial was held

in September 2004.      (Lieutenant Comstock had not moved for summary

judgment based on QI.)        Pursuant to Federal Rule of Civil Procedure

50(a), Lieutenant Comstock moved for JML both at the close of

Thomas’ case and of all the evidence, including based on QI; but,

because trial of this action had been so delayed, the district

judge reserved ruling on JML until after a verdict was rendered.

The jury awarded Thomas one dollar.

     Post-verdict,      the    district       court   denied       the    pending   JML

motions and entered judgment.        Lieutenant Comstock again moved for

JML and, also, for a new trial; Thomas, for an additur or a new

trial.   The motions were denied.




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                                   II.

     Lieutenant Comstock claims, inter alia, he is entitled to JML

based on QI.    Because he is entitled to QI, we need not reach the

other issues he raises on appeal.

     The denial of JML is reviewed de novo.           E.g., Burge v. St.

Tammany Parish, 336 F.3d 363, 369 (5th Cir. 2003).            We apply the

same standard the district court applied and consider the evidence

in the light most favorable to the party opposing the motion.

E.g., Bank of Saipan v. CNG Fin. Corp., 380 F.3d 836, 840 (5th Cir.

2004).     JML is proper if “a reasonable jury would not have a

legally sufficient evidentiary basis to find for [a] party on [an]

issue”.     FED. R. CIV. P. 50(a); see Huss v. Gayden, 465 F.3d 201,

205 (5th Cir. 2006).

     Concerning QI, “government officials performing discretionary

functions generally are shielded from liability for civil damages

insofar as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known”. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

see also Elder v. Holloway, 510 U.S. 510, 512 (1994) (“[Q]ualified

immunity shields public officials ... from damages actions unless

their     conduct   was   unreasonable   in   [the]   light    of   clearly

established law”.).       For deciding whether Lieutenant Comstock is

entitled to QI, we examine:       (1) whether Thomas alleged, for the

spray-incident in 1996, the violation of a constitutional right;

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and, (2) if so, whether Lieutenant Comstock’s conduct in 1996 was

objectively reasonable in the light of then clearly-established

law.    E.g., Easter v. Powell, 467 F.3d 459, 462 (5th Cir. 2006).

       Thomas alleged the violation of a constitutional right by

claiming the use of excessive force.              Therefore, we turn to the

second    prong:      whether      the    challenged   conduct      in    1996     was

objectively reasonable under then clearly-established law.

       “[A] good-faith effort to maintain or restore discipline” does

not give rise to an Eighth Amendment violation; on the other hand,

the malicious or sadistic application of force to cause harm does.

Hudson v. McMillian, 503 U.S. 1, 7 (1992).             De minimus use of force

can    constitute    an   Eighth      Amendment   violation       only   if   it    is

“repugnant to the conscience of mankind”.              Id. at 9-10.

       Although the use of de minimus force — including chemical

sprays    —   can    support     an      excessive-force    claim,       Lieutenant

Comstock’s    actions     were   not      “repugnant   to   the    conscience       of

mankind”.     Id.; see also Jones v. Shields, 207 F.3d 491, 495-96

(8th Cir. 2000) (correctional officer’s use of a pepper-based

chemical spray resulted in de minimus injury and was not “repugnant

to the conscience of mankind” when used to subdue a “recalcitrant

prisoner” locked in his cell or in handcuffs). Rather, his actions

both preceding and following his use of the spray reflect he

carefully ensured both the level of force and any injury to Thomas

were minimal.       As noted, he warned Thomas that a five-man response

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team or OC spray would be used to ensure his compliance with his

housing reassignment; ensured Thomas had no health conditions that

would be aggravated by exposure to the spray; used the less-

intrusive spray, rather than the five-man team; administered only

one burst of spray after giving Thomas sufficient warning to allow

him to cover his face; and immediately permitted Thomas to proceed

to the infirmary to rid himself of any chemical residue.

     Here, the administration in 1996 of one 1.8-ounce burst of OC

spray     to    an   inmate   disobeying       lawful      orders,     pursuant    to

authorization given by a superior, was not objectively unreasonable

in the light of then clearly-established law.                See, e.g., Williams

v. Benjamin, 77 F.3d 756, 763 (4th Cir. 1996) (use of mace against

inmates    throwing      liquids   at    guards      did    not   violate    Eighth

Amendment); Soto v. Dickey, 744 F.2d 1260, 1270-71 (7th Cir. 1984)

(use of mace against inmate who refused to obey a direct order was

not per se violation of the Eighth Amendment).                         Accordingly,

pursuant to the doctrine of qualified immunity, Lieutenant Comstock

is entitled to JML.

                                        III.

     For       the   foregoing   reasons,      the   judgment     is   VACATED    and

judgment is RENDERED in favor of Lieutenant Comstock.

                                                            VACATED and RENDERED




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