           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          March 11, 2008

                                     No. 07-40881                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


GUS LIVINGSTON ELLIOT

                                                  Plaintiff - Appellee
v.

MICHAEL LINNELL, in his individual capacity as a Peace Office
commissioned by the University of North Texas; GREGORY J PRICKETT, in
his individual capacity as a Peace Officer commissioned by the University of
North Texas

                                                  Defendants - Appellants



                    Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 4:05-CV-344


Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
           Gus Elliot brought this 43 U.S.C. § 1983 action against Officer
Michael Linnell and Sargent Gregory Prickett, alleging that they violated his
Fourth Amendment rights. Livingston contended that Linnell used excessive
force in arresting him and that Prickett did nothing to stop it. The officers


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-40881

moved for summary judgment, arguing that qualified immunity shielded
them from suit. The district court denied the motion, and the officers filed
this interlocutory appeal of that denial.
      1.    Linnell contends that the district court erred by its legal decision
            in denying that all of the evidence entitles him to qualified
            immunity. This court has jurisdiction to entertain such a
            challenge. Kenney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004)
            (en banc). Linnell’s argument, however, fails on the merits. The
            district court determined that whether Elliot resisted arrest and
            how his head collided with Linnell’s were both disputed material
            facts. Those facts are material because they bear on whether
            Linnell’s response of pushing Elliot’s face into his squad car was
            “objectively reasonable” given the facts and circumstances he
            faced and under existing law. See Mace v. City of Palestine, 333
            F.3d 621, 624 (5th Cir. 2003).
      2.    As for Prickett, the district court treated him as a participant in
            the same conduct as that of Linnell. What is said above then
            applies to Prickett. If the evidence should prove that Prickett
            was only a bystander, he would be liable only if he did “not take
            reasonable measures to protect” Elliott from Linnell, if Linnell
            used excessive force. Hale v. Townley, 45 F.3d 914, 919 (5th Cir.
            1995).
AFFIRMED.




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