Leslie Moss v. Jeffrey Brown, et al

Filing

UNPUBLISHED OPINION FILED. [10-10207 Affirmed in Part, Vacated in part and Remanded.] Judge: EHJ , Judge: EGJ , Judge: LHS. Mandate pull date is 01/05/2011 [10-10207]

Leslie Moss v. Jeffrey ase: 10-10207 C Brown, et al

Document: 00511322308 Page: 1 Date Filed: 12/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10207 S u m m a r y Calendar December 15, 2010 Lyle W. Cayce Clerk

L E S L I E LLOYD MOSS, also known as Leslie L. Moss,, P la in t if f -A p p e lla n t v. J E F F R E Y A. BROWN; JOE PONDER; KRISTI SATTERFIELD; SUSANA S. F E R N A N D E Z ; SUZZANNE TENORIO, D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 2:09-CV-110

B e fo r e JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges. PER CURIAM:* L e s lie Lloyd Moss, Texas prisoner # 896113, appeals the dismissal of his 4 2 U.S.C. § 1983 lawsuit against officials of the Clements Unit of the Texas D e p a r t m e n t of Criminal Justice as frivolous and for failure to state a claim, p u r s u a n t to 28 U.S.C. §§ 1915A, 1915(e)(2)(B), and 42 U.S.C. § 1997e(c)(1). Moss argues that the dismissal of his excessive-force claims against Officer J e ffr e y Brown and Sergeant Joe Ponder was error. He has waived by failing to

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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

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Case: 10-10207 Document: 00511322308 Page: 2 Date Filed: 12/15/2010 No. 10-10207 b r ie f any challenge to the dismissal of his excessive-force claim against L ie u t e n a n t Kristi Satterfield or his claims of deliberate indifference to his s e r io u s medical needs. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1 9 9 3 ); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th C ir . 1987); see also FED. R. APP. P. 28(a)(9). Accordingly, the district court's d is m is s a l of those claims is affirmed. W e review the district court's dismissal of the unwaived excessive-force c la im s de novo, accepting all well-pleaded facts as true and viewed in the light m o s t favorable to the plaintiff. Geiger v. Jowers, 404 F.3d 371, 373 (2005); In re K a tr in a Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). "Factual a lle g a t io n s must be enough to raise a right to relief above the speculative level, o n the assumption that all the allegations in the complaint are true (even if d o u b t fu l in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "[T]o state an Eighth Amendment excessive force claim, a prisoner . . . m u s t show that force was applied not in a good faith effort to maintain or restore d is c ip lin e , but rather that the force complained of was administered maliciously a n d sadistically to cause harm." Rankin v. Klevenhagen, 5 F.3d 103, 107 (5th C ir . 1993) (internal quotation marks and citation omitted); see Hudson v. M c M illia n , 503 U.S. 1, 6-7 (1992). Five nonexclusive factors are considered in d e t e r m in in g whether an excessive force claim has been established: (1) the e x t e n t of the injury suffered; (2) the need for the application of force; (3) the r e la t io n s h ip between the need and the amount of force used; (4) the threat r e a s o n a b ly perceived by the responsible officials; and (5) any efforts made to t e m p e r the severity of a forceful response. Baldwin v. Stalder, 137 F.3d 836, 839 (5 t h Cir. 1998). The failure to protect an inmate from the use of excessive force b y others can give rise to liability under § 1983. Hale v. Townley, 45 F.3d 914, 9 1 9 (5th Cir. 1995). Moss's allegations, accepted as true and viewed in the light most favorable t o him, state a claim for excessive force plausible on its face. See In re Katrina 2

Case: 10-10207 Document: 00511322308 Page: 3 Date Filed: 12/15/2010 No. 10-10207 C a n a l Breaches Litigation, 495 F.3d at 205. Specifically, he alleged that the fo r c e used against him was not applied in a good-faith effort to restore order but in t e n t io n a lly and maliciously to cause harm. See Hudson, 503 U.S. at 6-7; R a n k in , 5 F.3d at 107. Moss asserted that he placed his arm through the food s lo t of his cell after being denied a meal, whereupon Sgt. Ponder threatened to c a l l a use-of-force team, which Sgt. Ponder told him would result in a beating, a n d Officer Brown threatened to break his arm to close the food slot. Afraid of t h e threats, Moss withdrew his arm. Twenty minutes later, Sgt. Ponder

r e t u r n e d with a seven-man use-of-force team, including Officer Brown, to place M o s s on restriction and confiscate his property. Moss alleged that, when he fa ile d to comply, the officers were ordered to spray chemical agent into the cell, in response to which he thrust his arm through the food slot a second time. Three officers, including Brown, were then ordered "to assist" his arm back into t h e cell. Moss asserted that two officers bent his fingers back but Officer Brown u s e d an excessive amount of force, twisting and snapping his finger, causing it t o break. With respect to the above-listed Baldwin factors, Moss alleged that he s u ffe r e d a concrete injury, a broken finger. Although the district court found t h a t Moss frustrated the officers' attempts to use the least amount of force a v a ila b le , chemical spray, by thrusting his arm through the food slot of his cell a second time, the facts alleged do not show that the use of chemical spray was n e c e s s a r y or that Moss was not reacting to what he perceived to be an improper u s e of force, particularly in light of Sgt. Ponder's alleged prior threat that he w o u ld suffer a beating at the hands of a use-of-force team if one was called. Even if it is assumed that some use of physical force was justified after M o s s again placed his arm through his cell's food slot, Moss alleged that Officer B r o w n 's use of force was excessive to the need and differed from that applied by t h e other two officers who pushed on his fingers. Moss specifically asserted that O ffic e r Brown did not just bend his finger back but twisted and snapped it, 3

Case: 10-10207 Document: 00511322308 Page: 4 Date Filed: 12/15/2010 No. 10-10207 in t e n t io n a lly breaking it, as evidenced by his earlier threat to break Moss's arm in order to close the food slot. The district court's finding that nothing in the r e c o r d indicated that Officer Brown acted differently than the other officers or t h a t he was not acting pursuant to a legitimate command is therefore p r e m a tu r e . Additionally, Moss alleged that Sgt. Ponder, who had been present w h e n Officer Brown had threatened him, failed to ensure the minimum use of fo r c e and failed to intervene and protect him from Officer Brown's use of e x c e s s iv e force. Further factual development may show that Moss's allegations are without m e r it . However, at this early stage of the proceedings, dismissal was error as M o s s 's allegations are not facially frivolous and, if accepted as true and viewed in his favor, are sufficient to state a plausible claim for excessive force. See In r e Katrina Canal Breaches Litigation, 495 F.3d at 205; Bell Atlantic, 550 U.S. at 5 5 5 ; see also Rankin, 5 F.3d at 107; Baldwin, 137 F.3d at 839; Hale, 45 F.3d at 9 1 9 . The district court's dismissal of the excessive-force claims against Officer B r o w n and Sgt. Ponder are therefore vacated, and the case is remanded for fu r t h e r proceedings. AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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