UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20986 Summary Calendar

ARTURO EDELMIOR FLORES

Plaintiff-Appellant,

VERSUS

DOUGLAS DRETKE; ET AL

Defendants,

BENNIE, Correctional Officer III; AGUILAR, Captain; RALPH BENNETT

Defendants - Appellees.

Appeal from the United States District Court for the Southern District of Texas (No. H-98-CV-2151)

November 14, 2001

Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Arturo E. Flores appeals the district

court’s dismissal of his suit under

, an action

alleging violations of his Eighth Amendment right to be free from

* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. cruel and unusual punishment. The district court found that

Flores had failed to show that he was injured by the rough

handling he received by Defendants and for that reason determined

that Flores’s complaint did not state a claim for relief. We

disagree with this determination and reverse and remand for

further proceedings.

In brief, Flores in late 1997 fell from a truck while

loading sacks of cotton seed, the fall apparently causing him to

lose consciousness. Flores complains that he was kicked and

abused by a corrections officer, Ralph Bennett, while on the

ground following the fall and that a kick from the officer

severely injured his right eye. Bennett called medical personnel

and an unnamed field supervisor to Flores’s aid, but Flores

contends that they also abused him. Following his return to

prison, Flores contends that he was assigned to administrative

segregation when he refused to sign paper representing that his

fall was caused by another inmate. This suit was initiated

almost a year later. The district court heard testimony on

Flores’s claims in late 2000 and thereafter announced that an

order of dismissal would be forthcoming. Flores made a timely

appeal.

The district court was not clear about the provision under

which it was dismissing Flores’s suit. But under either of the

then-applicable rules--

(e)(2) and Fed. R. Civ. P.

-2- 12(b)(6)--we review a district court’s dismissal de novo. See

Moore v. Carwell,

(5th Cir. 1999). Whether

there was excessive force in violation of the Eighth Amendment

depends on if the force was used in a “good-faith effort to

maintain or restore discipline” or instead was merely gratuitous.

See Hudson v. McMillian,

(1992). An inmate need

not show serious injury to make out a claim for excessive force,

but any injury suffered must be more than de minimus. See Gomez

v. Chandler,

(5th Cir. 1999). In his amended

complaint, Flores contends that while semiconscious and unable to

move Bennett kicked him in the head, causing damage to Flores’s

eye, which required several months’ medical treatment. Such

force cannot be part of any appropriate effort to maintain

discipline, so we must conclude that Flores had sufficiently

alleged a constitutional violation. The same holds for Flores’s

allegations against an unnamed field supervisor and the attending

medical personnel. Flores states that those persons also kicked

him and that they dragged him to the ambulance, further

exacerbating Flores’s injuries. That he does not allege that he

sustained a serious injury at those individuals’ hands is not

fatal to Flores’s excessive force claim.

The district court correctly dismissed Flores’s other

claims, however. Being placed in administrative segregation

cannot give rise to a cognizable constitutional injury. See

-3- Luken v. Scott,

(5th Cir. 1995). And we agree

with the district court’s refusal to appoint counsel, this case

being straightforward and Flores having managed to represent

himself up to this point. See Ulmer v. Chancellor,

(5th Cir. 1982).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

-4-