Christopher White v. Howard Brown, et al

Filing

UNPUBLISHED OPINION ORDER FILED. [14-30329 Dismissed as Frivolous] Judge: PEH , Judge: EHJ , Judge: SAH Mandate pull date is 11/25/2014; denying motion to proceed IFP in accordance with PLRA filed by Appellant Mr. Christopher White [7652356-2] [14-30329]

Case: 14-30329

Document: 00512825337

Page: 1

Date Filed: 11/04/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-30329

United States Court of Appeals
Fifth Circuit

FILED
November 4, 2014

CHRISTOPHER WHITE,

Lyle W. Cayce
Clerk

Plaintiff-Appellant
v.
HOWARD BROWN, Lieutenant; JAMES DAUZAT,
VICTTORIA, Colonel; TIM DELANEY, Warden,

Captain;

RAY

Defendants-Appellees
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-17
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Christopher White, Louisiana prisoner # 365408, moves for leave to
appeal in forma pauperis (IFP) from the dismissal of a 42 U.S.C. § 1983 civil
rights complaint he filed against Lt. Howard Brown, Capt. James Dauzat, and
two other defendants employed by the Louisiana Department of Corrections.
White alleged that he was subjected to excessive force in violation of the Eighth
Amendment when Dauzat ordered Brown to spray him with a chemical agent.

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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The district court granted summary judgment for the defendants based on
qualified immunity.
By moving to proceed IFP, White challenges the certification that his
appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997). He must show that his “appeal involves ‘legal points arguable on their
merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th
Cir. 1983) (citation omitted). We may dismiss the appeal “when it is apparent
that an appeal would be meritless.” See Baugh, 117 F.3d at 202 & n.24; see
5TH CIR. R. 42.2.
“Summary judgment is proper if the pleadings and evidence show there
is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law.” See Hernandez v. Yellow Transp., Inc., 670 F.3d
644, 650 (5th Cir. 2012); FED. R. CIV. P. 56(a). The nonmovant “cannot defeat
summary judgment with conclusory allegations, unsubstantiated assertions,
or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th
Cir. 2007) (internal quotation marks and citations omitted).

Because the

defendants asserted qualified immunity, White had the burden of “establishing
that the [defendants’] allegedly wrongful conduct violated clearly established
law and that genuine issues of material fact exist regarding the reasonableness
of the [defendants’] conduct.” Gates v. Texas Department of Protective and
Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008). He may not “rest on
conclusory allegations and assertions but must demonstrate genuine issues of
material fact regarding the reasonableness of the [defendants’] conduct.”
Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). To prevail on a claim
of excessive force, White was required to show that force was not “applied in a
good-faith effort to maintain or restore discipline,” but rather “maliciously and

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sadistically for the very purpose of causing harm.” See Hudson v. McMillian,
503 U.S. 1, 6 (1992).
The defendants presented a large amount of summary-judgment
evidence to show that Brown applied a minimal amount of force, resulting in
no objectively observable harm to White, in order to put an end to White’s
defiance and aggravated disobedience. In response, White has reiterated his
narrative and presented at most a scintilla of evidence about marginally
relevant facts, mostly concerning disciplinary proceedings arising from the
disturbance. His specific contentions are simply not supported by the record.
In addition, White does not dispute that he received medical attention
right after he was sprayed and that he showed no objective sign of injury. The
absence of significant injury is an “objective component” of the analysis and is
relevant to whether the use of force was wanton and unjustified, and to show
efforts to temper its severity. Hudson, 503 U.S. at 7-8. White also abandoned
his claims against defendants Ray Victtoria and Tim Delaney. See Raj v.
Louisiana State University, 714 F.3d 322, 327 (5th Cir. 2013).
White has failed to carry his burden in opposing summary judgment
based on qualified immunity. See Gates, 537 F.3d at 419. Because he identifies
no nonfrivolous issue for appeal, his IFP motion is DENIED, and the appeal is
DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2.

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