IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_____________________

No. 98-51168 Summary Calendar _____________________

LARRY W. HILL, ET AL.,

Plaintiffs,

versus

ERASMO E. BRAVO, ETC., ET AL.,

Defendants. *****************************************************************

TIMOTHY P. THURSTON; DESTRY THOMAS,

Plaintiffs-Appellants,

versus

E. BRAVO,

Defendant-Appellee. _________________________________________________________________

Appeals from the United States District Court for the Western District of Texas USDC No. SA-95-CV-917 USDC No. SA-97-CV-391 _________________________________________________________________ February 4, 2000

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Timothy Thurston, Texas prisoner #582236, and Destry Thomas,

Texas prisoner #654261, appeal from the district court’s judgment

dismissing their

complaint in part and granting

summary judgment, in its entirety, in favor of the defendants.

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Thurston and Thomas had alleged that excessive force had been used

against them and that they had been denied adequate medical care.

Thomas’s notice of appeal, dated beyond the thirty days

permitted to file a timely notice of appeal, is untimely. Fed. R.

App. P. 4(a)(1) (thirty days in which to appeal timely). Although

Thomas’s notice of appeal was filed within the 30-day grace

permitted by Fed. R. App. P. 4(a)(5), Thomas did not file a motion

to extend the time for filing and did not make a showing of good

cause or excusable neglect. Under the rule of this circuit, there

is no jurisdiction over Thomas’s appeal, and it is DISMISSED. See

Mann v. Lynaugh,

(5th Cir. 1988).

Thurston does not challenge the district court’s determination

that he had failed to present sufficient facts identifying his

attackers with regard to his excessive force claim arising out of

an alleged physical assault. He instead argues, for the first

time, that Major Bravo is liable for these officers’ actions

because he was present but did not intervene to stop the assault.

As this theory of liability was never raised in the district court,

it cannot be raised for the first time on appeal. Leverette v.

Louisville Ladder Co.,

(5th Cir. 1999), petition

for cert. filed, (U.S. Nov. 24, 1999)(No. 99-884). Accordingly,

the judgment of the district court granting summary judgment in

favor of the defendants with regard to the excessive force claim

premised upon the physical assault must be AFFIRMED.

2 Thurston’s excessive force claim premised upon the gassing of

the bus by defendants Major Bravo, Warden Poppell, and Captain

Head, however, must be vacated and remanded the light of this

court’s decision in Gomez v. Chandler,

(5th Cir.

1999). The record reflects that Thurston sought and received

medical treatment following the gassing of the bus, and Thurston

also averred that the gas had injured him, “causing great pain to

[his] eyes, lungs, nose, mouth[,] and skin.” Without a conclusion

that the force was applied in a good faith effort to maintain or

restore discipline, rather than maliciously and sadistically to

cause harm, there is no context in which to judge the amount of

force used. The relatively scant evidence of a physical injury

alone does not preclude relief when the district court was unable

to conclude as a matter of law that the gassing of the bus was

objectively reasonable. Baldwin, 137 F.3d at 839. Accordingly, we

VACATE the district court’s grant of summary judgment for Major

Bravo, Warden Poppell, and Captain Head and REMAND the excessive

force claim premised upon the gassing of the bus for further

proceedings.

Thurston has abandoned his claims against the defendants in

their official capacity, his conspiracy claim, and his denial of

adequate medical care claim, by failing to brief them on appeal.

See Yohey v. Collins,

(5th Cir. 1993); Fed. R.

App. P. 28(a)(6).

DISMISSED in part; AFFIRMED in part;

3 VACATED and REMANDED in part.1

1 All outstanding motions are DENIED.

4