UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-41473
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LESTER T. PULLEN,
Plaintiff-Appellant,
VERSUS
RANDY VANDERTUIN,
Defendant-Appellee.
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Appeal from the United States District Court for the Eastern
District of Texas
(4:97-CV-238)
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July 17, 2000
Before DAVIS, JONES and STEWART, Circuit Judges.
DAVIS, Circuit Judge:*
Lester Pullen, proceeding pro se and informa pauperis, appeals
the district court’s entry of summary judgment dismissing Pullen’s
42 U.S.C. § 1983 civil rights suit against Randy Vandertuin, a
McKinney, Texas police officer, based on qualified immunity.
Pullen alleges that Vandertuin violated his civil rights by using
excessive force while arresting Pullen for violating narcotics
*
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this opinion should not be published and is not precedent except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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laws. Pullen’s appeal presents a single issue: whether Pullen has
raised a question of material fact sufficient to defeat
Vandertuin’s motion for summary judgment. For the reasons that
follow, we conclude that he has not.
I.
On July 19, 1996, Officer Vandertuin was working undercover on
a buy-bust drug operation involving a confidential informant
(“C.I.”). Vandertuin and other officers wired the C.I. with a body
microphone that enabled Vandertuin and the other officers to
monitor the C.I. as he drove Pullen and Pullen’s two children to a
drug rendezvous.
The officers observed Pullen purchasing crack cocaine. After
the purchase, Pullen returned to the passenger seat of the vehicle
driven by the C.I. and gave some of the narcotics to the C.I. in
exchange for forty dollars cash. Observing this transaction, the
officers decided to make a traffic stop of the vehicle driven by
the C.I..
According to Vandertuin’s affidavit, he overheard Pullen
advise the C.I. to put the crack in her mouth and swallow.
Vandertuin then approached the passenger side of the vehicle, where
Pullen was seated, and observed Pullen “with his head down, making
suspicious movements with his hands, and [] became concerned that
he might be attempting to secure a weapon.” Vandertuin states that
Pullen refused to exit the vehicle and continued making suspicious
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movements with his hands. Thus, “[f]earing for [his] own safety as
well as that of my fellow officers, the children in the back seat
and the C.I.,” Vandertuin opened the passenger door and removed
Pullen by this right arm. Vandertuin states that Pullen struggled
as he was being handcuffed. During the struggle, Vandertuin
observed an unidentified male approach the scene. “Not knowing the
intent of this unidentified person, and/or whether such a person
might interfere with the arrest of Pullen and jeopardize the safety
of those present,” Vandertuin “placed [his] foot in the center of
Pullen’s back at which time another officer came and assisted in
hurriedly handcuffing Pullen.”
Pullen contests few aspects of Vandertuin’s account. In his
affidavit, Pullen states only that he was already out of the car
when Vandertuin came running up, threw him on the ground, and
stomped on him. According to Pullen, Vandertuin stopped stomping
to look into Pullen’s mouth, stomped on Pullen several more times,
again looked in Pullen’s mouth, and then took him back to the car.
Pursuant to a magistrate’s recommendation, the district court
entered summary judgment for Vandertuin, finding that the officer
was entitled to qualified immunity. The court found that “it is
undisputed that the Plaintiff resisted the Defendant’s attempts to
handcuff him, and that an unidentified male was approaching the
scene, causing the Defendant to be concerned about the possibility
of being outmanned by the Plaintiff and the other male.” The court
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concluded that such circumstances rendered Officer Vandertuin’s
decisions to place the Plaintiff face down on the ground and to
place his foot in the center of Plaintiff’s back objectively
reasonable.
II.
We review de novo the district court’s grant of summary
judgment, viewing questions of fact in the light most favorable to
the party opposing the motion. Horton v. City of Houston, 179 F.3d
188, 191 (5th Cir. 1999). Summary judgment is proper only if “the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, show that there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 106 S.Ct.
2548 (1986). Moreover, in prisoner pro se cases, courts must
vigilantly “guard against premature truncation of legitimate
lawsuits merely because of unskilled presentations.” Murrell v.
Bennet, 615 F.2d 306, 311 (5th Cir. 1980).
On appeal, Pullen essentially argues that Officer Vandertuin
lied in his affidavit. He contends that Vandertuin did not see a
drug deal go down, that he did not resist arrest, that he did not
strike his children, and that he did not possess a weapon. To
support these allegations, Pullen cites a portion of his trial
testimony from his drug case and a “case summary,” neither of which
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he presented to the district court. Apparently, Pullen also seeks
to incorporate his affidavit filed in response to Vandertuin’s
motion for summary judgment.
The doctrine of qualified immunity shields officers from suit
if the officers’ actions were reasonable “in light of clearly
established law and the information the . . . officers possessed.”
Anderson v. Creighton, 483 U.S. 635, 641 (1987). In the context of
an excessive force claim, we must engage in an “objective” inquiry
and “balance the amount of forced used against the need for that
force with reference to clearly established law at the time of the
conduct in question.” Colston v. Barnhart, 130 F.3d 96, 99 (5th
Cir. 1997). We look “to the totality of the circumstances, paying
particular attention to whether the suspect pose[d] an immediate
threat to the safety of the officers or others, and whether he
[was] actively resisting arrest.” Stroik v. Ponseti, 35 F.3d 155,
158 (5th Cir. 1994). Moreover, the Supreme Court has explained that
we must not employ “the 20/20 vision of hindsight,” but must
instead consider the “fact that police officers are often forced to
make split second judgments - - in circumstances that are tense,
uncertain, and rapidly evolving - - about the amount of force that
is necessary in a particular situation.” Graham v. Connor, 490
U.S. 386, 396-97 (1989).
Accepting Pullen’s statements as true and assuming arguendo
that we may properly consider the trial transcript and case
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summary, we nevertheless find that Pullen has failed to raise a
genuine issue of material fact as to whether Officer Vandertuin
employed excessive force. Pullen does not dispute that: (1) he
purchased illegal narcotics; (2) Vandertuin heard this transaction;
(3) Vandertuin heard him instructing the C.I. to swallow or destroy
evidence; (3) Vandertuin knew that a confidential informant and two
children were in Pullen’s car and; (4) an unidentified male
approached Vandertuin as he attempted to handcuff Pullen. These
facts establish that Vandertuin faced an unstable, dangerous
situation, which posed a threat not only to himself but also to the
C.I. and Pullen’s children. Faced with such a situation,
Vandertuin did not act unreasonably in throwing Pullen to the
ground and standing on him in order to bring Pullen under control
quickly and to ascertain the threat posed by the unidentified male.
Accordingly, the district court did not commit error in entering
summary judgment against Pullen’s claim.
III.
The judgment of the district court is AFFIRMED.
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