                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      October 30, 2006

                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 04-30852
                            Summary Calendar


RICKEY BARNES,

                                       Plaintiff-Appellant,

versus

DAVID JOHNSON; RUSSELL BORDELON; BILLY MONTGOMERY; CLINT BOND;
HARVEY SLATER; JOHN DOE, Security Officer; JOHN DOE, Security
Officer; JOHN DOE, Security Officer; PETE HEFLIN; UNKNOWN DAVIS;
UNKNOWN ORR; JOHN DOE, Classification Officer; JOHN DOE, Mental
Health Officer; JOE SERIO; BRYAN JUNEAU; UNKNOWN MILLS; RICHARD
STALDER; SHIRLEY COODY,

                                       Defendants-Appellees.

                       --------------------
          Appeals from the United States District Court
               for the Middle District of Louisiana
                     USDC No. 3:03-CV-83-D-M1
                       --------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

     Rickey    Barnes,   Louisiana   prisoner   #   119466,    appeals      the

dismissal of his pro se 42 U.S.C. § 1983 civil rights action.

Barnes alleged that the defendants used excessive force against him

and were deliberately indifferent to his resulting serious medical

needs.




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this opinion should not be published and is not precedent except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

     The     district   court    dismissed     the   allegations   against

defendants Montgomery and Barnes for failure to state a claim.         We

review such a dismissal de novo.      See Berry v. Brady, 192 F.3d 504,

507 (5th Cir. 1999).    To state an Eighth Amendment excessive force

claim, a plaintiff must allege that the 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.    See Hudson v. McMillian, 503 U.S. 1, 7 (1992).       Barnes

made no allegation in his complaint that he suffered any injury as

a result of the macing by Montgomery and Barnes; he alleged only

that he immediately rinsed his face and eyes.            Accordingly, the

district court’s dismissal of the excessive-force claim against

defendants Montgomery and Bond is affirmed.

     We review de novo the district court’s grant of defendant

Slater’s motion for summary judgment.          Cousin v. Small, 325 F.3d

627, 637 (5th Cir. 2003).        Summary judgment is proper where the

pleadings and summary judgment evidence present no genuine issue of

material fact and the moving party is entitled to a judgment as a

matter of law.    See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986).       The court may not weigh the evidence nor

make credibility determinations.        See Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986).        Barnes verified his complaint in

a form substantially similar to that set forth in 28 U.S.C. § 1746.

R. 1, 59.     His complaints and allegations set forth therein are

thus considered competent summary judgment evidence.          See King v.
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                                     -3-

Dogan, 31 F.3d 344, 346 (5th Cir. 1994) (a verified complaint may

serve as competent summary-judgment evidence).

     Barnes’s allegations of severe injury directly contradict the

defendants’     summary-judgment         affidavits   stating   that   Barnes

sustained only a bruise to the inside of his lip.               Even if the

medical records show that Barnes could prove only that he suffered

a bruised lip, this is not a per se de minimis injury. The district

court did not evaluate this injury in light of the remaining Hudson

factors, i.e., need for the application of force, relationship

between   the   need   and    use   of   force,   threat   perceived   by   the

official, and efforts made to temper the severity of the response.

See Hudson, 503 U.S. at 6-7.        Without this inquiry and analysis of

the allegations in light of the Hudson factors, it cannot be said

that the force used by Slater was de minimis or that the injury

suffered by Barnes was de minimis.          See id. at 7; see also Williams

v. Bramer, 180 F.3d 699, 703-04 (5th Cir. 1999).            Accordingly, the

summary judgment in favor of Slater is VACATED and this case is

REMANDED for further proceedings.

     Barnes challenges the dismissal of the three unidentified,

unserved CET members.        We review this dismissal under Federal Rule

of Civil Procedure 4(m) for an abuse of discretion.              Fournier v.

Textron Inc., 776 F.2d 532, 534 (5th Cir. 1985).                  Under Rule

4(m), if a defendant is not served within 120 days of the filing of

the complaint, the district court “shall dismiss the action without

prejudice as to that defendant or direct that service be effected
                                 No. 04-30852
                                      -4-

within a specified time.”        Fed. R. Civ. P. 4(m).        However, “if the

plaintiff shows good cause for the failure, the court shall extend

the time for service for an appropriate period.”             Id.; see Thompson

v. Brown, 91 F.3d 20, 21 (5th Cir. 1996).

     It is not clear from the record that the district court

considered    whether   Barnes    had   shown   good   cause    or   whether   a

permissive extension of time for service was warranted.               A review

of the record supports Barnes’s assertion that the names of these

CET members do not appear in the record.                   On this record, we

conclude that the district court abused its discretion in summarily

dismissing    the   three   unserved,    and    as   yet    unidentified,   CET

members.     Accordingly, we VACATE the dismissal of these three

defendants and REMAND to the district court.

     Barnes argues that the district court erred in dismissing for

failure to state a claim his allegation that Dr. Heflin was

deliberately indifferent to his serious medical needs.               To state a

claim of deliberate indifference to medical needs, the plaintiff

must allege facts showing that the defendant denied him treatment,

purposefully gave him improper treatment, or ignored his medical

complaints.    See Domino v. Texas Dep’t of Criminal Justice, 239

F.3d 752, 756 (5th Cir. 2001).          A delay in medical care violates

the Eighth Amendment only if it is due to deliberate indifference

and the delay results in substantial harm. Mendoza v. Lynaugh, 989

F.2d 191, 195 (5th Cir. 1993).
                                 No. 04-30852
                                      -5-

     Barnes’s assertion that he had to wait three hours at the

prison hospital before he was seen by Dr. Heflin does not clearly

evince any official dereliction or indifference by Heflin; Barnes

likely would have had a similar wait in a real-world emergency

room.   Additionally, Barnes’s assertion that Heflin did no more

than a cursory examination but did not conduct a more through

“physical” examination or take x-rays alleges, at most, negligence

or medical malpractice, which do not give rise to a § 1983 cause of

action, and an inmate’s disagreement with his medical treatment

does not establish a constitutional violation.                  See Varnado v.

Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).

     Barnes    did   not   plead   any   facts    which,   if     proved,    would

establish that Heflin denied him treatment, purposefully gave him

improper treatment, or ignored his medical complaints. See Domino,

239 F.3d at 756.      Accordingly, the district court did not err in

dismissing the claims against Heflin, and this portion of the

district court’s judgment is AFFIRMED.

     Barnes explicitly abandons on appeal any issues regarding the

dismissal of his claims against Johnson and Bordelon and the

district court’s denial of discovery.            He does not argue on appeal

that the district court erred in dismissing the other defendants

and has abandoned any such arguments by failing to brief them.                 See

Yohey   v.    Collins,     985   F.2d    222,    224-25    (5th    Cir.     1993).

Accordingly, the district court’s dismissal of these defendants and

the denial of discovery are AFFIRMED.
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                                  -6-

     AFFIRMED   IN   PART;   VACATED   AND   REMANDED   IN   PART;   ALL

OUTSTANDING MOTIONS ARE DENIED.
