     Case: 13-10492      Document: 00512553655         Page: 1    Date Filed: 03/07/2014




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

                                    No. 13-10492
                                                                                Fifth Circuit

                                                                              FILED
                                  Summary Calendar                        March 7, 2014
                                                                         Lyle W. Cayce
JERRY BOB FREEMAN,                                                            Clerk


                                                 Plaintiff-Appellant

v.

LESLEY SIMS; MATHEW LANG; JOSEPH BOYLE,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:10-CV-12


Before REAVLEY, JONES, and PRADO, Circuit Judges.
PER CURIAM: *
       Jerry Bob Freeman, Texas prisoner # 671030, appeals the district court’s
dismissal of his 42 U.S.C. § 1983 complaint filed against three correctional
officers of the Allred Unit, Lesley Sims, Mathew Lang, and Joseph Boyle. In
the complaint, Freeman alleged that Sims and Lang had violated his Eighth
Amendment right by using excessive force in transporting him to another cell.
Additionally, he asserted that Lang and Boyle violated his due process rights


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-10492

in connection with a disciplinary proceeding. The district court first dismissed
Freeman’s claim against Boyle. Lang and Sims filed a motion for summary
judgment based on qualified immunity. The district court granted the motion
and dismissed Freeman’s complaint.
      Freeman does not address the district court’s dismissal of his claim
against Boyle on the ground that it was barred by Heck v. Humphrey, 512 U.S.
477 (1994). Though he addresses the district court’s dismissal of his claim
challenging the disciplinary conviction, Freeman frames the issue as a
challenge to the district court’s dismissal of his claim challenging a false
disciplinary action. He did not charge Boyle with falsely accusing him. Rather,
he claimed that Boyle violated his due process rights by failing to admit the
video into evidence at the disciplinary proceeding. Because Freeman fails to
raise any argument regarding the dismissal of his claim against Boyle, this
claim is abandoned. See Brinkmann v. Dallas County Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987).
      We review de novo a grant of summary judgment, applying the same
standard as the district court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d
752, 754 (5th Cir. 2011). When, as here, the defendant officials plead qualified
immunity, the plaintiff has the burden of rebutting the defense by establishing
a genuine dispute as to whether the official’s conduct violated a constitutional
right of the plaintiff and whether that right was clearly established at the time
of the violation. Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010).
      Although we review evidence in the light most favorable to the
nonmovant, this court assigns “greater weight, even at the summary judgment
stage, to the facts evident from video recordings taken at the scene.” Carnaby
v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011). “A court of appeals need
not rely on the plaintiff’s description of the facts where the record discredits



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                                 No. 13-10492

that description but should instead consider ‘the facts in the light depicted by
the videotape.’” Id. (quoting Scott v. Harris, 550 U.S. 372, 381 (2007)).
      Freeman argues that the district court erred in granting summary
judgment because the decision was based on the court’s credibility
determinations, and he further contends that the DVD recording was altered.
While the recording appears unfocused for the first two minutes, the behavior
and actions of both the officers and Freeman can be evaluated by viewing the
recording. His argument that the DVD was altered is conclusory, speculative,
and insufficient to show that the district court erred in granting summary
judgment. See Carnaby, 636 F.3d at 187.
      Freeman also contends that summary judgment was inappropriate
because there were genuine disputes as to material facts. Specifically, he
challenges the district court’s conclusion that chemical agents were
administered after he refused to submit to restraints. He contends that he was
not resisting during his transport and did not persist in aggressive behavior.
Further, Freeman argues that he was not provided with the means to
decontaminate and that the district court ignored his assertion that Lang
pinned him to the ground and punched him in the face.
      In light of the video evidence and Freeman’s own admissions, there can
be no genuine dispute that Freeman refused to comply with orders prior to the
administration of chemical agents by the defendants, that the actions of Lang
and Sims were objectively reasonable under the circumstances, and that
Freeman was instructed on how to decontaminate and provided with the
means to do so. See Carnaby, 636 F.3d at 187. Based on Freeman’s refusal to
comply with orders and aggressive behavior, there was need for application of
force, the degree of force used was in relation to Freeman’s escalating
aggression, the threat was reasonably perceived, and the officers used only the



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                                 No. 13-10492

amount of force necessary to regain control of the situation. See Hudson v.
McMillian, 503 U.S. 1, 7 (1992). Thus, the district court did not err in granting
summary judgment and dismissing Freeman’s claims of excessive force. See
Brown, 623 F.3d at 253.
      Additionally, Freeman challenges the dismissal of his claim against
Lang alleging that Lang filed a false disciplinary action. He asserts that Heck
does not bar relief on this claim because there was no finding that a judgment
in his favor would necessarily imply the invalidity of his disciplinary
conviction. He further argues that his disciplinary conviction would not be
reversed if he received damages because the burden of proof in disciplinary
proceedings is “some evidence,” even if such evidence is false.
      Contrary to Freeman’s assertions, his claim of false charges, if credited,
necessarily implies the finding of guilt and punishment for the violation, which
included the loss of good-time credits. Because Freeman did not show that the
disciplinary decision had been overturned, the district court did not err in
dismissing this claim. See Brown, 623 F.3d at 253; Edwards v. Balisok, 520
U.S. 641, 648-49 (1997).
      Accordingly, the judgment of the district court is AFFIRMED.




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