Strawbridge v. McDow

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-40454 Summary Calendar

JOSEPH G. STRAWBRIDGE,

Plaintiff-Appellant,

versus

SHANNON L. McDOW, Correctional Officer, Coffield Unit Individually and in official capacity; SCOTT L. HOLLEY, Correctional Officer, Coffield Unit Individually and in official capacity; DAVID S. KASSAW, Correctional Officer, Coffield Unit Individually and in official capacity,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 6:97-CV-364 - - - - - - - - - -

April 28, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Joseph G. Strawbridge, Texas prisoner no. 529740, appeals

the magistrate judge’s entry of summary judgment in favor of

Defendants Scott L. Holley and David S. Kassaw and the magistrate

judge’s dismissal, as frivolous, of his claims against Defendant

Shannon L. McDow.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-40454 -2-

In deciding Strawbridge’s excessive force claim, the

magistrate judge relied upon our decision in Siglar v.

Hightower, 112 F.3d 191 (5th Cir. 1997), to find that

Strawbridge’s injuries were de minimis and thus could not form

the basis of a 42 U.S.C. § 1983 civil rights claim. The

magistrate judge did not have the benefit of our recent decision

in Gomez v. Chandler, 163 F.3d 921 (5th Cir. 1999), in which we

elaborated upon the definition of “de minimis” in a factual

context more similar to the instant case than Siglar. The

magistrate judge’s opinion regarding Strawbridge’s excessive

force claim is thus VACATED; the case is REMANDED for

reconsideration in light of Gomez.

The magistrate judge’s resolution of Strawbridge’s claims

that (1) he was subjected to an unfair disciplinary proceeding,

resulting in a lengthier prison term and undesirable prison

housing, and (2) that he was the victim of retaliation is

AFFIRMED for essentially the same reasons cited by the magistrate

judge. See Strawbridge v. McDow, 6:97-CV-364 (E.D. Tex., March

11, 1998). Strawbridge’s request for appointment of counsel is

DENIED AS MOOT.

AFFIRMED IN PART; VACATED AND REMANDED IN PART. REQUEST FOR

APPOINTMENT OF COUNSEL DENIED.