UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-41146
(Summary Calendar)
_________________
LARRY LEE CLARK,
Plaintiff - Appellant,
versus
J G GONZALEZ, Warden; R SANCHEZ; UNKNOWN
SIMMONS; NUECES COUNTY SHERIFF’S DEPARTMENT,
Defendants - Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(C-95-CV-670)
October 23, 1997
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Larry Lee Clark, a state prisoner proceeding pro se and in
forma pauperis, filed an action under 42 U.S.C. § 1983 against
officers J. Gonzalez, R. Sanchez, and Simmons (collectively, “the
individual defendants”) and against the Nueces County Sheriff’s
*
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that this opinion should not be published and is not precedent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.
Department alleging that while he was a pretrial detainee he was
beaten by the individual defendants and that he was denied medical
treatment for the injuries he allegedly suffered. The magistrate
judge granted summary judgment in favor of defendants on all
claims, including qualified immunity, and Clark now appeals.
Finding a genuine issue of material fact with regard to the
excessive force claims against the individual defendants, we
reverse and remand in part. We affirm as to all other claims.
I
Following a disagreement Clark had with an employee in the
kitchen of the Nueces County Jail, three officers1 escorted Clark
back to his cell. At some point before entering an elevator to his
unit, they placed handcuffs on Clark. Clark states in a sworn
affidavit (which defendants filed in support of their summary
judgment motion) that while he was standing and facing the wall of
the elevator, the officers hit him, slammed his head into the wall
face first, and slammed him from wall to wall while holding both of
1
Sanchez and Gonzalez were two of the officers involved in the
incident. Clark alleges that Simmons was the third officer, but
the defendants filed affidavits stating that Officer J. Arellano
was the third officer and that Simmons was not present at any time.
Simmons’ time card, attached as an exhibit to his affidavit,
reflects that Simmons punched out at 14:82 on September 14, 1994
(the time cards appear to be in hundredths of an hour, rather than
minutes). Clark contends that the beating occurred approximately
between 2:30 p.m and 3:00 p.m. The incident report completed by
Morrison reflects that Sanchez returned Clark to his cell at 3:40
p.m. Viewing this evidence in the light most favorable to Clark,
we believe there is a genuine issue of fact regarding the identity
of this third officer that precludes entry of summary judgment for
Simmons.
-2-
his arms. Although Clark admits calling Gonzalez “a punk” before
entering the elevator, Clark maintains that in the elevator he
followed the officers’ instructions not to turn around or say
anything. Gonzalez states in his sworn affidavit that Clark was
acting “aggressive and combative” and that when Clark tried to turn
away from the elevator wall, he and Officer Arellano held Clark
against the wall to prevent him from striking one of them.
Clark states in his verified supplemental pleading that he
suffered injuries to his head, shoulder, and lip as a result of
this incident. The defendants, on the other hand, state that Clark
neither received nor complained of any injuries during this
incident, and, if he had, they would have taken him to a medic
immediately. When Clark was returned to his cell, the unit officer
called a medic, who gave Clark pain medication. On September 20,
1994, a doctor prescribed medication for Clark’s headaches. During
the next few months, Clark continued to complain about headaches
and was prescribed two other medications.
Clark filed a verified complaint and, pursuant to the order of
the district court, a verified supplemental pleading in which he
further specified the facts underlying his cause of action.2 The
court conducted a Spears3 hearing, concluded that Clark had met his
2
Verified pleadings are proper summary judgment evidence to
the extent that they comport with the requirements of FED. R. CIV.
P. 56(e). See King v. Doran, 31 F.3d 344, 346 (5th Cir. 1994).
3
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
-3-
burden to show his case was not frivolous, and allowed the case to
proceed. The parties consented to disposition of the case before
a magistrate judge. The defendants filed a motion for summary
judgment, claiming that they were entitled to qualified immunity,
that Clark did not allege a policy or custom that was a moving
force behind the alleged violations, that Clark failed to prove an
injury, that the force the officers applied was objectively
reasonable and in a good faith effort to restore order, and that
defendants did not act in deliberate indifference to any serious
medical needs of Clark. Clark did not file a response. The
magistrate judge granted the defendants’ motion for summary
judgment.
II
Clark contends that the three officers beat him without any
provocation and used force that was excessive under the
circumstances. He further contends that he was then denied medical
treatment for his injuries despite repeated requests. Defendants
deny both of these claims, claiming the same grounds as they did in
their summary judgment motion.4
A
We review a grant of summary judgment de novo. See New York
Life Ins. Co. v. The Travelers Ins. Co., 92 F.3d 336, 338 (5th
4
There is no indication that the magistrate judge relied on
qualified immunity to grant summary judgment. Because defendants
alleged qualified immunity, however, we consider it.
-4-
Cir. 1996). Summary judgment is proper “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” FED. R. CIV. P. 56(c). “[T]he
party moving for summary judgment must ‘demonstrate the absence of
an issue of material fact,’ but need not negate the elements of the
nonmovant’s case.” Little v. Liquid Air Corp., 37 F.3d 1069, 1075
(5th Cir. 1994) (en banc) (quoting Celotex Corp. v. Catrett, 477
U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)).
In addressing defendants’ summary judgment motion, the
magistrate judge briefly stated Clark’s allegations, summarized the
legal standard for summary judgment, and then, invoking Local Rule
6.E, which provides that a failure to respond will be taken as a
representation of no opposition, granted summary judgment in favor
of the defendants. We have held that “[a] motion for summary
judgment cannot be granted simply because there is no opposition,
even if the failure to oppose violated a local rule.” Hibernia
Nat’l Bank v. Administracion Central Sociedad Anonima, 776 F.2d
1277, 1279 (5th Cir. 1985) (citing John v. Louisiana (Bd. of
Trustees for State Colleges & Univs.), 757 F.2d 698 (5th Cir.
1985)). When a party moving for summary judgment does not meet its
initial summary judgment burden, the court must deny its motion
even if the nonmoving party did not file a response. See id. If
-5-
the court grants the summary judgment solely because of the
nonmoving party’s lack of response, that decision constitutes
reversible error.5 See id. However, because we review summary
judgments de novo, we will consider whether the defendants met
their summary judgment burden.
B
Gonzalez, Sanchez, and Simmons claim qualified immunity. We
conduct a bifurcated analysis to assess whether a defendant is
entitled to qualified immunity. See Rankin v. Klevenhagen, 5 F.3d
103, 105 (5th Cir. 1993). The first step is to determine whether
the plaintiff has alleged a violation of a clearly established
constitutional right. See id. The second step is to determine
“whether the defendant’s conduct was objectively reasonable.” Id.
In order to state a claim for excessive force, a pretrial
detainee “must show that force was applied not ‘in a good-faith
effort to maintain or restore discipline,’ but rather . . .
‘maliciously and sadistically to cause harm.’” Rankin v.
Klevenhagen, 5 F.3d 103, 107 (5th Cir. 1993) (quoting Hudson v.
McMillian, 503 U.S. 1, 6, 112 S. Ct. 995, 998, 117 L.Ed.2d 156
5
It is not clear whether the magistrate judge considered
whether the defendants had met their initial summary judgment
burden or relied solely on the local rule in rendering his
decision. Because Clark did not brief this issue on appeal,
however, we need not resolve it. See Al-Ra'id v. Ingle, 69 F.3d
28, 31 (5th Cir. 1995) (holding that although we liberally construe
briefs of pro se parties, pro se party waives issue by failing to
comply with FED. R. APP. P. 28(a)(6), which requires parties to
brief all issues to be considered on appeal).
-6-
(1992)). In addition, the plaintiff must show some injury; de
minimis uses of physical force are not constitutionally protected.
See Jackson v. Culbertson, 970 F.2d 1430, 1432 (5th Cir. 1993).
The summary judgment evidence suggests that Clark suffered
injuries to his head, shoulder, and lip as the result of an
unprovoked beating that was administered after he was already
handcuffed. Clark has therefore shown for qualified immunity
purposes a violation of a clearly established right. In addition,
the evidence reveals that a genuine issue of material fact remains
regarding the objective reasonableness of such force. The
individual defendants have failed to demonstrate the absence of
genuine issue of fact and that they are entitled to judgment as a
matter of law as to the excessive force claims.
C
In order to state a claim under § 1983 for denial of medical
care, Clark must establish the individual defendants’ deliberate
indifference to his serious medical needs. See Wesson v. Oglesby,
910 F.2d 278, 283 (5th Cir. 1990). Viewed in the light most
favorable to Clark, however, the summary judgment record sets forth
no evidence that the individual defendants acted with deliberate
indifference to any serious medical needs of Clark.6 We hold
6
In his brief, Clark states for the first time that Gonzalez
and Sanchez did not take him immediately to see medical personnel
after they used force against him even though it is the sheriff’s
department policy to do so. This is insufficient to establish
deliberate indifference to serious medical needs, and it is not
-7-
therefore that the magistrate judge properly entered summary
judgment dismissing the denial of medical care claims.
D
Clark does not contend that the alleged beating or the denial
of medical care was pursuant to a policy or custom of the Nueces
County Sheriff’s Department. The magistrate judge therefore
properly dismissed all claims against the sheriff’s department.
Accordingly, we affirm the summary judgment in favor of the
sheriff’s department.
III
For the foregoing reasons, we REVERSE the magistrate judge’s
grant of summary judgment as to the excessive force claims against
the individual defendants and REMAND for trial. We AFFIRM the
summary judgment as to all claims against the Nueces County
Sheriff’s Department and as to the denial of medical care claims
against the individual defendants.
supported by any evidence in the summary judgment record.
-8-