UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT __________________________________________

No. 99-40127 Summary Calender _________________________________________

WILLIE BENTON,

Plaintiff-Appellant,

v.

JEFFREY TAYLOR, Correctional Officer; JIMMY PACE, Correctional Captain,

Defendants-Appellees. __________________________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 9:96-CV-82 __________________________________________

November 23, 1999

Before DAVIS, EMILIO M. GARZA, and DENNIS, Circuit Judges.

PER CURIAM 1:

Willie Benton, a Texas prisoner (#537558), appeals from the district court’s order

granting a motion for summary judgment in favor of defendants Jeffery Taylor and Jimmy Pace in

Benton’s

civil rights action.

In deciding Benton’s excessive force claim, the district court relied upon our decision in

Siglar v. Hightower,

(5th Cir. 1997), to conclude that Benton’s injries were de

minimis and thus could not form the basis of a Section 1983 claim. The district court did not have

the benefit of our recent decision in Gomez v. Chandler,

(5th Cir. 1999), in which

we elaborated upon the defeinitnion of “de minimis” injuries in a factual context more similar to

the instant case than Siglar. There remain genuine issues of material fact about, inter alia, whether

the application of force was even necessary in Benton’s case, whether defendant Taylor’s assault

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. caused Benton any long-lasting injuries. The district court’s order granting summary judgment

further proceeding in light of Gomez.

Benton’s request for appointment of counsel is DENIED as unnecessary.

VACATED AND REMANDED; REQUEST FOR APPOINTMENT OF COUNSEL

DENIED.

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