     Case: 10-60340       Document: 00512137119         Page: 1     Date Filed: 02/06/2013




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

                                                                            FILED
                                                                         February 6, 2013

                                       No. 10-60340                        Lyle W. Cayce
                                                                                Clerk

TOMMY JACKSON,

                                                  Plaintiff - Appellant
v.

LAWRENCE KELLY, Superintendent; JAMES BREWER, Warden, Unit 29;
REBECCA BLUNT, 29 G Building, Unit Administrator; L. T. ROACH, Field
Operation Administrator; LAWYER ROSS, Field Operation Officer; RANDY
HARPER, Field Operation Officer; VELENA FLAGG, Associate Warden
Classification,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 4:07-CV-144


Before STEWART, Chief Judge, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Appellant Tommy Jackson (“Jackson”), Mississippi prisoner #32944,
proceeding pro se and in forma pauperis (“IFP”), appeals the district court’s
dismissal of his civil rights complaint pursuant to 42 U.S.C. § 1983 following an




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60340     Document: 00512137119      Page: 2    Date Filed: 02/06/2013



                                  No. 10-60340

evidentiary hearing. Finding no error, we AFFIRM for the reasons more fully set
forth below.
                                         I.
      This case arises from an incident taking place at the Mississippi State
Penitentiary. On January 11, 2006, appellee Officers Lawyer Ross (“Ross”) and
Randy Harper (“Harper”) conducted a search of the cells for contraband. During
the search, Jackson became belligerent and yelled at the officers. Pursuant to
standard operating procedures for such searches, the officers required Jackson
and his cell mate to exit the cell and sit on the floor. Jackson exited the cell but
refused to sit down and continued to berate the officers. Ross then entered
Jackson’s cell and began the search. Jackson then slipped by Harper, entered the
cell, and jerked Ross backwards by his collar. At this point, the officers forced
Jackson onto his bunk.
      Jackson alleges that the officers used excessive force against him causing
injury to his head, chest, and back. While the officers claim Jackson grabbed
Officer Ross by the collar, Jackson argues that this accusation is impossible
because he has limited use of his right arm and leg, caused by childhood polio.
Further, Jackson contends that this incident would not have occurred had he
been properly classified and housed based on his medical condition and
additionally argues that the appellees violated the Americans with Disabilities
Act (“ADA”) because he was not housed in a special needs facility. He also
argues that Lieutenant Rebecca Blunt (“Blunt”) observed the incident from the
guard tower but failed to intervene and protect him. Moreover, Jackson argues
on appeal that he was subject to reprisals by Commissioner Epps.1
      On November 24, 2008, the magistrate judge conducted a nearly four-hour
evidentiary hearing pursuant to Flowers v. Phelps, 956 F.2d 488 (5th Cir.),

      1
        Jackson alleges that Epps illegally reclassified and segregated him in close
confinement for a year.

                                         2
    Case: 10-60340     Document: 00512137119      Page: 3   Date Filed: 02/06/2013



                                  No. 10-60340

modified in part on other grounds, 964 F.2d 400 (5th Cir. 1992), and issued a
report and recommendation. The report concluded that Jackson’s claims should
be dismissed because he failed to exhaust his housing classification claim and
he lacked a constitutionally protected liberty interest in the classification.
Furthermore, the magistrate judge found that the testimony was fully consistent
with the appellees’ account of the incident, including Ross’s testimony that
Jackson grabbed him. The magistrate judge also found that Jackson’s excessive
force claim against Ross and Harper should be dismissed because they applied
force in a good-faith effort to maintain and restore discipline. Finally, the
magistrate judge recommended that Jackson’s failure-to-protect claim against
Blunt should be dismissed because there was no excessive force applied and
because she did not view the incident.
      Jackson objected, arguing, among other things, that the magistrate judge’s
report contained disputed facts that were adduced at an unconstitutional
evidentiary hearing in violation of his right to a jury trial. The district court
overruled the objections, adopted the magistrate judge’s report, and ordered that
Jackson’s complaint be dismissed with prejudice. Jackson moved to proceed IFP
on appeal. The district court denied his motion, certifying that the appeal was
not taken in good faith.
      Jackson filed a motion in this court challenging that decision and a motion
for the appointment of counsel in the district court. This court remanded the
case and ordered the district court to give reasons for its certification decision.
      After the case was remanded, Jackson filed a motion to amend his suit to
add a claim under the ADA and a request for the appointment of counsel. The
district court denied IFP for the reasons set forth in the magistrate judge’s
report and recommendation. The district court also denied Jackson leave to
amend his complaint. A judge of this court determined that Jackson raised a
nonfrivolous argument as to whether Officers Ross and Harper used excessive

                                         3
       Case: 10-60340     Document: 00512137119         Page: 4     Date Filed: 02/06/2013



                                       No. 10-60340

force against him. Jackson has not raised in this court his district court
argument that he was entitled to a jury trial, and he has, therefore, abandoned
it.2
                                             II.
        A hearing conducted pursuant to Flowers v. Phelps amounts to a “bench
trial replete with credibility determinations and findings of fact.” McAfee v.
Martin, 63 F.3d 436, 437 (5th Cir. 1995). This court reviews bench trial findings
of fact, including rulings on excessive use of force, for clear error. Baldwin v.
Stalder, 137 F.3d 836, 839 (5th Cir. 1998). “[F]or a finding to be clearly
erroneous, [this court] must have a firm conviction, based on a review of the
entire record, that a mistake has been made.” Id.
                                             III.
                                             A.
        The only significant issue in this case is whether excessive force was used
against Jackson during the search of his cell. The core inquiry in an Eighth
Amendment excessive use of force claim is “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” Hudson v. McMillian, 503 U.S. 1, 7 (1992). That inquiry includes
the following non-exclusive factors: (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) efforts made to temper the severity of a forceful response.
Baldwin, 137 F.3d at 838-39. Importantly, not all malevolent contact by a prison
guard establishes a constitutional violation. Id. at 839. A violation of the Eighth
Amendment requires that both the force used and the injury incurred must be


        2
          Although pro se briefs are afforded liberal construction, Haines v. Kerner, 404 U.S.
519, 520 (1972), even pro se litigants must brief arguments in order to preserve them. Yohey
v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993).

                                              4
    Case: 10-60340     Document: 00512137119      Page: 5   Date Filed: 02/06/2013



                                  No. 10-60340

more than de minimis and must be evaluated in the context in which the force
was used. Hudson, 503 U.S. at 9-10; Lockett v. New Orleans City, 607 F.3d 992,
999 (5th Cir. 2010).
      The district court adopted the magistrate judge’s report and
recommendation which applied the five factors and dismissed the excessive use
of force claim. The magistrate judge meticulously went through the record and
identified specific reasons why Jackson’s excessive force claim should be
dismissed. Specifically, the magistrate judge found (1) that Jackson’s injuries
were more than de minimis, but less than severe; (2) that force was needed given
Jackson’s belligerent behavior, his refusal to obey a direct order, and Ross’s
credible testimony that Jackson jerked him by the collar; (3) that given Jackson’s
conduct and the need to restore order, the amount of force used was reasonable
and appropriate; (4) that a threat was reasonably perceived by the officers based
on the credible testimony that Jackson jerked Ross back by the collar; and (5)
that the officers’ efforts to restore order were tempered as they wrestled Jackson
down onto his bunk and waited until he was compliant. Based on the record
developed during the evidentiary hearing, the magistrate judge concluded that
each factor weighed against Jackson’s excessive force claim.
      In sum, the record fully supports the finding that the officers’ application
of force was not clearly excessive relative to the need to restore discipline so as
to constitute a constitutional violation. Baldwin, 137 F.3d at 838-39; Hudson,
503 U.S. at 7. Thus, even if Jackson could demonstrate he suffered a more than
de minimis injury, he has failed to show a constitutional violation.
                                        B.
      Jackson next argues that the alleged excessive use of force would not have
occurred if the appellees had properly housed him because of his medical
condition. The district court dismissed Jackson’s claim that the appellees
improperly housed him for failure to exhaust his administrative remedies.

                                        5
     Case: 10-60340       Document: 00512137119          Page: 6     Date Filed: 02/06/2013



                                       No. 10-60340

Because Jackson failed to brief any challenge to the district court’s reasons for
dismissing this claim, he has abandoned this ground for appeal. See Yohey, 985
F.2d at 224-25; Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744,
748 (5th Cir. 1987) (refusing to raise and discuss legal issues that appellant
failed to assert).
                                              C.
       Jackson also contends that Lieutenant Blunt observed the incident from
the guard tower but that she was deliberately indifferent to his need for
assistance and failed to protect him from harm. To prove an Eighth Amendment
violation, the evidence must show that Blunt knew of a “substantial risk of
serious harm” to Jackson or that she disregarded the risk by “failing to take
reasonable measures to abate it.” See Farmer v. Brennan, 511 U.S. 825, 847
(1994). The testimony demonstrates that Blunt did not witness the incident.
Thus, Jackson’s Eighth Amendment claim against Blunt is unavailing.
                                              D.
       Jackson argues on appeal that the district court erred when it dismissed
appellee Commissioner Epps for failure to state a claim for which relief could be
granted. Jackson asserts that he testified at the evidentiary hearing that he was
subject to reprisals by Epps, who illegally reclassified Jackson and segregated
him in close confinement for a year, in violation of Gates v. Collier, 501 F.2d 1291
(5th Cir. 1974).3
       The record reflects, however, that Jackson did not raise this issue before
the district court: he did not allege that Appellee Epps retaliated against him
or that Epps was otherwise liable, except to state that all defendants were liable
to him in their official capacities. This court need not address issues raised for


       3
         In Gates, this court noted that a Mississippi statute in effect at the time proscribed
corporal punishment and that punishing prisoners sent to solitary confinement in inhumane
ways ran afoul of the Eighth Amendment. Gates, 501 F.2d at 1304-06.

                                              6
    Case: 10-60340     Document: 00512137119      Page: 7   Date Filed: 02/06/2013



                                  No. 10-60340

the first time on appeal. Stewart Glass & Mirror, Inc. v. U.S. Auto Glass
Discount Ctrs., Inc., 200 F.3d 307, 316-17 (5th Cir. 2000).
                                        E.
      Finally, Jackson argues that because jurisdiction was automatic under the
ADA, the district court abused its discretion when it dismissed his suit. He
contends that the district court failed to provide him the process and protection
that he was due under the ADA; he argues that protection included appropriate
housing and protection from harm.
      Jackson sought to amend his complaint to add his claims under the ADA
after this court remanded the case to the district court for its failure to give
reasons for its finding that Jackson’s appeal was not taken in good faith.
Jackson’s argument, liberally construed, is that the district court erred when it
denied his motion to amend.
      Leave of court was required before Jackson could amend his complaint.
See FED. R. CIV. P. 15(a)(2). This court reviews the denial of a motion to amend
for abuse of discretion. Foman v. Davis, 371 U.S. 178, 182 (1962). The refusal
to grant leave to amend without providing justification for the denial is an abuse
of discretion. Id. However, “[w]here reasons for denying leave to amend are
ample and obvious, the district court’s failure to articulate specific reasons does
not indicate an abuse of discretion.” Ashe v. Corley, 992 F.2d 540, 542-43 (5th
Cir. 1993) (citation omitted) (internal quotation marks omitted). Given that the
district court had already rendered final judgment when Jackson sought to
amend his complaint, the district court’s decision to deny the motion was not an
abuse of discretion. See id.
                                       IV.
      For the above reasons, we AFFIRM the judgment of the district court.




                                        7
