     Case: 10-10207 Document: 00511322308 Page: 1 Date Filed: 12/15/2010




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

                                                 FILED
                                                                         December 15, 2010
                                     No. 10-10207
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LESLIE LLOYD MOSS, also known as Leslie L. Moss,,

                                                   Plaintiff-Appellant

v.

JEFFREY A. BROWN; JOE PONDER; KRISTI SATTERFIELD; SUSANA S.
FERNANDEZ; SUZZANNE TENORIO,

                                                   Defendants-Appellees


                    Appeal from the United States District Court
                         for the Northern District of Texas
                               USDC No. 2:09-CV-110


Before JONES, Chief Judge, and JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Leslie Lloyd Moss, Texas prisoner # 896113, appeals the dismissal of his
42 U.S.C. § 1983 lawsuit against officials of the Clements Unit of the Texas
Department of Criminal Justice as frivolous and for failure to state a claim,
pursuant to 28 U.S.C. §§ 1915A, 1915(e)(2)(B), and 42 U.S.C. § 1997e(c)(1).
Moss argues that the dismissal of his excessive-force claims against Officer
Jeffrey Brown and Sergeant Joe Ponder was error. He has waived by failing to


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 10-10207

brief any challenge to the dismissal of his excessive-force claim against
Lieutenant Kristi Satterfield or his claims of deliberate indifference to his
serious medical needs. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993); Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th
Cir. 1987); see also F ED. R. A PP. P. 28(a)(9). Accordingly, the district court’s
dismissal of those claims is affirmed.
      We review the district court’s dismissal of the unwaived excessive-force
claims de novo, accepting all well-pleaded facts as true and viewed in the light
most favorable to the plaintiff. Geiger v. Jowers, 404 F.3d 371, 373 (2005); In re
Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). “Factual
allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if
doubtful in fact).” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
      “[T]o state an Eighth Amendment excessive force claim, a prisoner . . .
must show that force was applied not in a good faith effort to maintain or restore
discipline, but rather that the force complained of was administered maliciously
and sadistically to cause harm.” Rankin v. Klevenhagen, 5 F.3d 103, 107 (5th
Cir. 1993) (internal quotation marks and citation omitted); see Hudson v.
McMillian, 503 U.S. 1, 6-7 (1992). Five nonexclusive factors are considered in
determining whether an excessive force claim has been established: (1) the
extent of the injury suffered; (2) the need for the application of force; (3) the
relationship between the need and the amount of force used; (4) the threat
reasonably perceived by the responsible officials; and (5) any efforts made to
temper the severity of a forceful response. Baldwin v. Stalder, 137 F.3d 836, 839
(5th Cir. 1998). The failure to protect an inmate from the use of excessive force
by others can give rise to liability under § 1983. Hale v. Townley, 45 F.3d 914,
919 (5th Cir. 1995).
      Moss’s allegations, accepted as true and viewed in the light most favorable
to him, state a claim for excessive force plausible on its face. See In re Katrina

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Canal Breaches Litigation, 495 F.3d at 205. Specifically, he alleged that the
force used against him was not applied in a good-faith effort to restore order but
intentionally and maliciously to cause harm. See Hudson, 503 U.S. at 6-7;
Rankin, 5 F.3d at 107. Moss asserted that he placed his arm through the food
slot of his cell after being denied a meal, whereupon Sgt. Ponder threatened to
call a use-of-force team, which Sgt. Ponder told him would result in a beating,
and Officer Brown threatened to break his arm to close the food slot. Afraid of
the threats, Moss withdrew his arm.         Twenty minutes later, Sgt. Ponder
returned with a seven-man use-of-force team, including Officer Brown, to place
Moss on restriction and confiscate his property. Moss alleged that, when he
failed to comply, the officers were ordered to spray chemical agent into the cell,
in response to which he thrust his arm through the food slot a second time.
Three officers, including Brown, were then ordered “to assist” his arm back into
the cell. Moss asserted that two officers bent his fingers back but Officer Brown
used an excessive amount of force, twisting and snapping his finger, causing it
to break.
      With respect to the above-listed Baldwin factors, Moss alleged that he
suffered a concrete injury, a broken finger. Although the district court found
that Moss frustrated the officers’ attempts to use the least amount of force
available, chemical spray, by thrusting his arm through the food slot of his cell
a second time, the facts alleged do not show that the use of chemical spray was
necessary or that Moss was not reacting to what he perceived to be an improper
use of force, particularly in light of Sgt. Ponder’s alleged prior threat that he
would suffer a beating at the hands of a use-of-force team if one was called.
      Even if it is assumed that some use of physical force was justified after
Moss again placed his arm through his cell’s food slot, Moss alleged that Officer
Brown’s use of force was excessive to the need and differed from that applied by
the other two officers who pushed on his fingers. Moss specifically asserted that
Officer Brown did not just bend his finger back but twisted and snapped it,

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                                  No. 10-10207

intentionally breaking it, as evidenced by his earlier threat to break Moss’s arm
in order to close the food slot. The district court’s finding that nothing in the
record indicated that Officer Brown acted differently than the other officers or
that he was not acting pursuant to a legitimate command is therefore
premature. Additionally, Moss alleged that Sgt. Ponder, who had been present
when Officer Brown had threatened him, failed to ensure the minimum use of
force and failed to intervene and protect him from Officer Brown’s use of
excessive force.
      Further factual development may show that Moss’s allegations are without
merit. However, at this early stage of the proceedings, dismissal was error as
Moss’s allegations are not facially frivolous and, if accepted as true and viewed
in his favor, are sufficient to state a plausible claim for excessive force. See In
re Katrina Canal Breaches Litigation, 495 F.3d at 205; Bell Atlantic, 550 U.S. at
555; see also Rankin, 5 F.3d at 107; Baldwin, 137 F.3d at 839; Hale, 45 F.3d at
919. The district court’s dismissal of the excessive-force claims against Officer
Brown and Sgt. Ponder are therefore vacated, and the case is remanded for
further proceedings.
         AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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