UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-20478
Summary Calendar
JAMES CARTER,
Plaintiff-Appellant,
VERSUS
JAMES A. LYNAUGH, ET AL
Defendants,
SAM PALASOTA; PATRICK CHRISTIAN; ARMANDO CANO,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(CA-H-90-3562)
May 14, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:1
Appellant, a state prisoner, brought a civil rights action
claiming unconstitutional use of force by several prison guards.
The district court granted summary judgment on qualified immunity
grounds in favor of defendants. Finding that the district court
determined issues of material fact we reverse and remand.
We evaluate whether Appellant has raised a valid excessive
force claim under currently applicable constitutional standards
1
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
under the rule of Hudson v. McMillian, 503 U.S. 1 (1992) which
requires that Appellant show that force was applied not in a good
faith effort to maintain or restore discipline but maliciously and
sadistically to cause harm. Because this incident occurred in
1990, the legal standard of Johnson v. Morel, 876 F.2d 477 (5th
Cir. 1989) governs whether the officer’s conduct was objectively
reasonable. Under Johnson, Appellant must establish a significant
injury which resulted directly and only from the use of excessive
force and that the excessiveness was objectively unreasonable.
In his affidavit opposing the summary judgment motion, Carter
stated:
“I suffered injuries including, cuts and
lacerations on my leg, a bruise on my face, a
knot on the right side of my forehead, pains
in my ribs, blurring of vision and sensitivity
to light in my right eye, and pain in my neck
region.”
The district court reasoned that, while the injuries alleged may be
significant under Johnson, Appellant had not shown that the
injuries resulted directly and only from the excessiveness of the
force applied. The district court further reasoned that these
injuries could have occurred from a non-excessive use of force. In
so doing, the district court of necessity resolved issues of
material fact which is inappropriate under Rule 56. The fact that
injuries may have involved the aggravation of a preexisting neck
injury does not preclude the possibility of recovery. Dunn v.
Denk, 79 F.3d 401 (5th Cir. 1996)(en banc). The district court did
not, of course, have the benefit of the en banc Dunn opinion.
REVERSED and REMANDED.
2