United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
December 12, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-41277
MARCUS P. BROWN,
Plaintiff-Appellee,
v.
FRED LIPPARD,
Defendant-Appellant.
Appeal from the United States District Court for the
Southern District of Texas
Before SMITH, BENAVIDES, and PRADO, Circuit Judges.
BENAVIDES, Circuit Judge:
Marcus Brown (“Brown”) alleges that while he was incarcerated,
Correctional Officer Fred Lippard (“Lippard”) used excessive
physical force against him. He brings this 42 U.S.C. § 1983 claim
for compensatory and punitive damages, arguing that Lippard
violated his Eighth Amendment right to be free from cruel and
unusual punishment. Brown previously prevailed on this claim and
was awarded damages in a jury trial, but the district court set
aside that judgment because Brown had not exhausted his
administrative remedies. Having exhausted his administrative
remedies, Brown renewed this claim.
Lippard moved for summary judgment, arguing that he was
entitled to qualified immunity, but the motion was denied. He now
appeals, arguing that Brown never showed anything more than a de
minimis injury, and thereby cannot overcome his qualified immunity
protection. We disagree and AFFIRM the district court’s denial of
summary judgment.
I. FACTS
Brown alleges that on September 12, 1998, Lippard came to his
cell under the pretense of escorting him to recreation. As Brown
exited his cell, Lippard grabbed his arm and told him “You don’t
lead me, I lead you.” A brief exchange ensued in which Lippard
indicated Brown’s recreation privileges were denied. Brown,
believing Lippard was set on harassing him, asked to speak with a
superior officer and sat down to wait for one to arrive.
As Brown sat knelt on one knee, Lippard allegedly struck him
several times in his back, head and shoulders. Lippard also tried
to ratchet his arms—at that point handcuffed behind him—up and over
his head. Lippard issued Brown citations for creating a
disturbance and refusing an order. Both citations were eventually
dismissed.
After the attack, Brown went immediately to a physician and
complained of knee, hand and shoulder pain. The nurse noted one-
2
centimeter abrasions on both his left knee and left shoulder, pain
in his right knee, and tenderness around his left thumb. Brown
also alleges that the attack exacerbated his prior back problems
and contributed to chronic tendinitis. Lippard introduced evidence
from Dr. Glenda Adams concluding that Brown’s injuries were minor
since there were “no fractures, sprains, lacerations, or bleeding.”
II. DISCUSSION
On summary judgment and appeal, Lippard argues that Brown’s
injuries are not severe enough to support an excessive force claim.
This Court has never directly held that injuries must reach beyond
some arbitrary threshold to satisfy an excessive force claim,1 as
Lippard assumes. Nonetheless, Brown’s injuries satisfy any such
standard.
In evaluating excessive force claims, courts may look to the
seriousness of the injury to determine “whether the use of force
could plausibly have been thought necessary, or instead evinced
1
The Supreme Court in Hudson was concerned with a de minimis
use of force showing, not a de minimis injury. Nonetheless, this
Circuit has on occasion referred to de minimis injuries, although
only with the caveat that when the force is “repugnant to the
conscience of mankind” the gravity of the injury may be irrelevant.
See Gomez v. Chandler, 163 F.3d 921, 924 n.4 (1999) (“It may also
be arguable that Siglar leaves open the possibility that a physical
injury which is only de minimis may nevertheless suffice for
purposes of the Eighth Amendment . . . if the force used is of the
kind “repugnant to the conscience of manking.”); see also Siglar v.
Hightower, 112 F.3d 191, 193 (1997). While beating a man on the
ground who is handcuffed very well might satisfy a “repugnant to
the conscience test,” we voice no opinion on the ambiguities left
after Gomez and Siglar, since there was more than a de minimis
injury here.
3
such wantonness with respect to the unjustified infliction of harm
as is tantamount to a knowing willingness that it occur.” Whitley
v. Albers, 475 U.S. 312, 321 (1986). This Circuit has found an
injury insufficient to support an excessive force claim where there
is no physical injury, see, e.g., Harper v. Showers, 174 F.3d 716,
719 (5th Cir. 1999), or where it is extremely minor. See Siglar v.
Hightower, 112 F.3d 191 (5th Cir. 1997) (bruise caused by having
ear twisted considered de minimis). The attack and injuries
described by Brown cannot be likened to a twisted ear.
A more analogous case is Gomez v. Chandler. 163 F.3d 921 (5th
Cir. 1999). After being knocked down and punched repeatedly, the
prisoner suffered “cuts, scrapes, contusions to the face, head, and
body.” Id. at 922. Not only are the injuries sustained here more
akin to those in Gomez, but the alleged attack was similarly not
“applied in a good-faith effort to maintain or restore discipline,
[rather] maliciously and sadistically to cause harm.” Id. at 923.
Lippard repeatedly attempts to minimize Brown’s injuries as
requiring “no more than swabbing with Betadine.” But the Supreme
Court has “put to rest a seriously misguided view that pain
inflicted by an excessive use of force is actionable under the
Eighth Amendment only when coupled with ‘significant injury,’ e.g.,
injury that requires medical attention or leaves permanent marks.”
Id. at 13 (Blackmun, J., concurring). While this particular injury
did require medical attention, Lippard apparently prefers a pre-
4
Hudson standard requiring the complainant to receive serious
medical attention. There is no basis for that position.
Lippard raises two further points that merit attention.
First, he claims that this case is distinguishable from Gomez since
his summary judgment motion was supported by a non-treating
physician’s affidavit concluding that the injuries were de minimis
and not the result of excessive force. The physician made this
conclusion after reviewing the same medical records before us.
While that affidavit is certainly some evidence that Brown’s
injuries are not as severe as he claims, it does not support the
legal conclusion that the undisputed injuries were de minimis.
Second, Lippard asserts that there was no evidence properly
before the district court that his actions were in bad faith, and
therefore that Brown did not overcome the immunity shield. The
evidence that Lippard was acting in bad faith came from both a
fellow officer and an inmate who described Brown’s behavior as
cooperative and unthreatening. But Lippard complains that such
evidence was not in the record on summary judgment, but from the
prior action dismissed for failure to exhaust remedies, and the
judge mistakenly took judicial notice of it.
Lippard’s argument is off point. The district judge did not
have to credit the testimony of the officer and inmate “for the
truth asserted.” Taylor v. Charter Med. Corp., 162 F.3d 827, 830
(5th Cir. 1998). The judge only had to notice that such testimony
5
existed, because the testimony’s very existence raises an issue of
fact sufficient to overcome summary judgment. Especially here,
where Lippard does not so much as allege that his actions were in
response to Brown’s misbehavior. Because the testimony’s existence
was “not subject to reasonable dispute” and “capable of accurate
and ready determination,” FED. R. EVID. 201(b), it was not improper
to take judicial notice of it.
III. CONCLUSION
The district court’s denial of Lippard’s motion for summary
judgment is AFFIRMED, and we REMAND the case for further
proceedings.
6