John ANDERSON, Plaintiff-Appellant v. George PAYNE; Gaston Riley; Phil Taylor; Damon Reese; T P Willis; Phillip Compton; Michael Neill, Defendants-Appellees.

No. 06-30874. Summary Calendar.United States Court of Appeals, Fifth Circuit.
January 2, 2008.

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

John Anderson Gulfport, MS, pro se.

Cyril T. Faneca, Jr., Haley N. Broom, Dukes, Dukes, Keating Faneca, Patrick Timothy Bergin, Butler, Snow, O’Mara, Stevens Cannada, Gulfport, MS, Wilkins, Stephens
Tipton, Jackson, MS, John Fitzgerald Hughes, Lee Hughes, Greenville, MS, for Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Mississippi, USDC No. 1:04-CV-542.

Before JOLLY, PRADO and SOUTHWICK, Circuit Judges.


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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

John Anderson, Mississippi prisoner # 279672, appeals the district court’s dismissal of his 42 U.S.C. § 1983
complaint following a bench trial. Anderson alleged that he was the victim of constitutionally excessive force at the hands of correctional officer Thomas Wills.

We review findings of fact made following a bench trial for clear error and legal conclusions de novo. Baldwin, v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998). A review of the record, including the trial transcript, establishes that the district court’s credibility findings are supported by the evidence. Additionally, the evidence supports the conclusion that although Anderson sustained more than a de minimis physical injury, the need for the use of force was legitimate, the threat perceived by Wills was reasonable given Anderson’s non-compliance, and Wills adequately tempered the severity of the use of force. See id. at 838. Anderson has not shown that the district court’s findings on his claims of excessive force were clearly erroneous. See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000).


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