Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
12-12-2003
Gordon v. Gonzalez
Precedential or Non-Precedential: Non-Precedential
Docket No. 01-3676
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 01-3676
JUKEN WASHINGTON GORDON,
Appellant
v.
N. GONZALEZ, Lieutenant - FCI Lewisburg;
S. PUCKEY; B. SHUMAN, SOS Officer;
J.A. CANDELORA, S.O. Officer;
G. SHUCK, SOS Officer;
PEORIA, Dr.; UNITED STATES OF AMERICA
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 01-cv-00331)
District Judge: Hon. Sylvia H. Rambo
Submitted Under Third Circuit LAR 34.1(a)
December 5, 2003
Before: SLOVITER, ALITO Circuit Judges and OBERDORFER, District Judge*
(Filed: December 12, 2003)
OPINION OF THE COURT
* Hon. Louis F. Oberdorfer, United States District Court for the District of
Columbia, sitting by designation.
SLOVITER, Circuit Judge.
Appellant Juken Washington Gordon filed a Bivens claim pursuant to 28 U.S.C. §
1331 alleging that while he was incarcerated at the United States Penitentiary in
Lewisburg, Pennsylvania, a physician’s assistant was deliberately indifferent to his
serious medical needs, and five named correctional officers used excessive force against
him in violation of his Eighth Amendment right to be free from cruel and unusual
punishment. The District Court dismissed his claim against the physician’s assistant for
failure to exhaust his administrative remedies and granted summary judgment on
Gordon’s excessive force claim. The court also denied Gordon’s motion for leave to
amend his complaint to add a due process claim. On the excessive force claim, the
District Court found that Gordon had not suffered physical injury and thus could not state
a claim. Gordon appeals.
Following the District Court’s order granting summary judgment, this court, in its
opinion in Smith v. Mensinger, 293 F.3d 641 (3d Cir. 2002), reversed the grant of summary judgment in favor of defendant prison officials on a prisoner’s claim that defendants had violated his Eighth Amendment right by the use of excessive force. In Smith, the District Court had focused exclusively on the severity of the prisoner’s injuries in denying the claim. Our opinion relied upon the Supreme Court’s decision in Hudson v. McMillian,503 U.S. 1
(1992), holding that “the use of excessive physical force against a
prisoner may constitute cruel and unusual punishment when the inmate does not suffer
2
serious injury.” Id. at 4. We applied Hudson in our decision in Brooks v. Kyler,204 F.3d 102
(3d Cir. 2000), where we stated that accepting the prisoner’s allegations as true, “a jury could find that the defendants acted not merely in good faith to maintain or restore discipline, but rather out of malice for the very purpose of causing harm.”Id. at 109
(citation omitted).
In Smith, our most recent decision concerning the issue before us in this case, we
reiterated that the “Eighth Amendment does not protect an inmate against an objectively
de minimis use of force.” Smith, 293 F.3d at 648 (citing Hudson). After considering our decision in Brooks and the Supreme Court’s decision in Hudson, we concluded that “de minimis injuries do not necessarily establish de minimis force.”Id. at 649.
In Gordon’s case before us, the Government candidly “confesses error.” Gov’t Br.
at 5. The Government continues, “the Smith decision, as well as Gordon’s sworn
affidavit filed in response to the summary judgment motion claiming that he told Dr.
Reish that he had no back problems prior to September 9, 2000, and that his back
problems were as a result of the beating by the officers [ ], suggest that there are genuine
issues of material fact concerning the extent of Gordon’s injuries, and as such, summary
judgment was improper.” Gov’t Br. at 5. The Government concludes that “Smith
requires the issue to [be] submitted to a jury.” Id.
In Gordon’s opening brief on appeal, he raised two arguments: one, that the
District Court abused its discretion by denying him leave to amend his complaint, and
3
two, that the District Court erred in granting summary judgment on the excessive force
claim because there were issues of material fact. In his reply brief, Gordon withdraws his
appeal of the District Court’s order denying his motion to amend his complaint.
Therefore, only the excessive force claim is before us. In light of our precedent and the
Government’s concession that summary judgment was improper, we will remand that
claim to the District Court for its reconsideration.1
For the reasons set forth above, we will vacate the District Court’s order granting
summary judgment and remand to the District Court for further proceedings in
accordance with this opinion.
__________________________
TO THE CLERK:
Please file the foregoing opinion.
\s\ Dolores K. Sloviter
Circuit Judge
1
In a separate order, we will refer to the District Court the letter from Gordon dated
6/19/02, which this court has treated as a motion to preserve evidence and provide
appellant with copy of a surveillance videotape.