     Case: 15-10514      Document: 00514320403         Page: 1    Date Filed: 01/24/2018




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

                                    No. 15-10514
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        January 24, 2018
                                                                           Lyle W. Cayce
GEORGE ALVIN JONES,                                                             Clerk


                                                 Plaintiff-Appellant

v.

DUSTIN ANDERSON, Sergeant,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:13-CV-122


Before STEWART, Chief Judge, and ELROD and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       George Jones, Texas prisoner # 1436799, asserts violations of his Eighth
and Fourteenth Amendment rights. Proceeding pro se and in forma pauperis,
he sued, pursuant to 42 U.S.C. § 1983, Sergeant Dustin Anderson, a
correctional officer employed by the Texas Department of Criminal Justice.
Jones contended that Anderson unjustifiably ordered him to clean showers,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-10514

threatened to throw Jones to the floor, and slammed Jones against walls while
he was handcuffed, causing Jones to suffer back pain.
      Anderson moved for summary judgment, arguing that there was no
genuine issue of material fact that his actions did not rise to the level of an
Eighth Amendment violation and were protected by qualified immunity. He
attached his affidavit denying that he used excessive force, Jones’s medical and
grievance records, and witnesses’ affidavits that corroborated Anderson’s
contentions. Jones responded but offered no competent summary judgment
evidence. The district court granted summary judgment and dismissed Jones’s
complaint. Jones timely appealed.
      We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is warranted “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). We draw all reasonable inferences in
favor of the nonmoving party. Haverda v. Hays County, 723 F.3d 586, 591 (5th
Cir. 2013).   “A genuine dispute as to a material fact exists when, after
considering the pleadings, depositions, answers to interrogatories, admissions
on file, and affidavits, a court determines that the evidence is such that a
reasonable jury could return a verdict for the party opposing the motion.” Id.
      Jones argues that the district court improperly credited Anderson’s
version of the facts over Jones’s version without allowing him to amend his
complaint. Jones maintains that credibility assessments and choices between
conflicting versions of events are matters for a jury to decide, not the court on
summary judgment.       However, Jones never sought leave to amend his
complaint, and Jones’s version of the facts, submitted in the form of “rebuttals”
to Anderson’s affidavits, are not sworn nor offered in compliance with 28 U.S.C.



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§ 1746, and, therefore, do not constitute competent summary judgment
evidence. See 28 U.S.C. § 1746; see also Duffie v. United States, 600 F.3d 362,
371 (5th Cir. 2010) (“When the moving party has met its Rule 56([a]) burden,
the nonmoving party cannot survive a summary judgment motion by resting
on the mere allegations of its pleadings.”); Larry v. White, 929 F.2d 206, 211
n.12 (5th Cir. 1991) (“Unsworn pleadings, memoranda, or the like are not, of
course, competent summary judgment evidence.”).
      The competent summary judgment evidence shows that Anderson
ordered Jones to clean the shower walls at the Jordan Unit. Jones admitted
that he refused Anderson’s “repeated orders.” Anderson ordered Jones to place
his hands behind his back to submit to hand restraints, and Anderson called
for assistance. While awaiting assistance, Anderson escorted Jones to “D-
space,” where Jones became verbally agitated and argumentative. Anderson
moved Jones to the glass wall in “D-space” so that “the picket officer [would]
have better visibility of” them. The picket officer did not observe Anderson use
“excessive force” and referred to Anderson’s actions concerning Jones as
“routine.”   Two officers arrived to assist Anderson, and Jones remained
verbally agitated. Sergeant Brown arrived on the scene and advised Anderson
to write a disciplinary report for Jones’s refusal to work and obey orders.
      An investigation of Jones’s allegations of excessive force revealed that
Jones could not identify which part of his face allegedly made contact with the
glass wall. Physical examinations by an officer and a nurse revealed no bruises
or markings on Jones. A doctor ordered Jones to continue with his dosage of
Ibuprofen, which had been prescribed for a pre-existing back condition.
Approximately five weeks after the incident, x-rays were taken of Jones’s
spine, which revealed “no abnormalities.”




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Jones’s Eighth Amendment Claims
      The unnecessary and wanton infliction of pain constitutes cruel and
unusual punishment forbidden by the Eighth Amendment.                   Hudson v.
McMillian, 503 U.S. 1, 5 (1992). “[W]henever prison officials stand accused of
using excessive physical force in violation of the Cruel and Unusual
Punishments Clause, the core judicial inquiry is . . . whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.”       Id. at 6-7.    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 competent summary judgment evidence establishes that Jones
suffered no injury from Anderson’s actions. Additionally, Jones repeatedly
refused to obey Anderson’s orders and acted agitated and argumentative.
Anderson reasonably perceived Jones’s actions to present a threat to
Anderson’s safety; his employment of force was necessary to restore discipline
and mitigate such a threat; and the amount of force employed by Anderson to
subdue Jones was not more than necessary to accomplish that end. Finally,
Anderson’s actions in subduing Jones—handcuffing Jones, escorting him to the
D-space, and placing him against the wall—escalated proportionately with
Jones’s refusal to obey orders and Anderson’s heightened awareness of the
potential threat that Jones’s actions posed.
      Based on the foregoing, there is no genuine issue of material fact that
Anderson did not employ excessive force in engaging with Jones during the



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                                 No. 15-10514

incident in question. Jones did not establish a violation of his constitutional
right under the Eighth Amendment. Because Jones failed to establish the
violation of a constitutional right, he has also failed to show that Anderson is
not entitled to qualified immunity. See Kipps v. Caillier, 197 F.3d 765, 768
(5th Cir. 1999).
Jones’s Fourteenth Amendment Claims
      Jones also argues that his Fourteenth Amendment due process rights
were violated as a result of Anderson’s purported use of excessive force. The
Eighth Amendment “serves as the primary source of substantive protection to
convicted prisoners.” Whitley v. Albers, 475 U.S. 312, 327 (1986). “Although
both the Eighth and Fourteenth Amendments protect the safety and bodily
integrity of prisoners, the legal standards are virtually identical.” Austin v.
Johnson, 328 F.3d 204, 210 n.10 (5th Cir. 2003) (citing Berry v. City of
Muskogee, 900 F.2d 1489, 1494 n.6 (10th Cir. 1990)); see Petta v. Rivera, 143
F.3d 895, 900 (5th Cir. 1998) (recognizing that validity of excessive force claim
based on violation of Eighth Amendment “must be judged by reference to the
specific standard which governs [Eighth Amendment] right rather than by the
more general substantive due process standard”).          Because Jones did not
establish a valid Eighth Amendment claim, he cannot establish a due process
violation based on his same allegations of excessive force.
      The district court’s judgment granting summary judgment to Anderson
and dismissing Jones’s complaint with prejudice is hereby AFFIRMED.




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