               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 95-10588
                        (Summary Calendar)



EDWARD CHARLES CROCKETT,

                                           Plaintiff-Appellant,


                                versus


M. A. THORNE, Officer,
Fort Worth Police Department,


                                           Defendant-Appellee.



          Appeal from the United States District Court
               for the Northern District of Texas
                          (4:91CV00470)
                           November 17, 1995



Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:*


     Plaintiff-Appellant Edward Charles Crockett appeals from the

district court's order granting the motion of Defendant-Appellee


     *
     Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
M.    A.       Thorne,     for   a   summary       judgment   dismissing    Crockett's

complaint under 42 U.S.C. § 1983.                      In addition, Crockett here

complains that the district court erred in denying his motions for

(1)        a     Spears1     hearing,       (2)      production    and      discovery,

(3) appointment of counsel, and (4) leave to amend his complaint to

add a demand for punitive damages, a demand for jury trial, and

additional defendants. Concluding that the district court erred in

granting summary judgment of dismissal, in refusing to permit

Crockett to amend his complaint to add a demand for punitive

damages, and in failing to consider his motion to add additional

defendants, we reverse in part and remand; however, we affirm the

court's denial of Crockett's motions to amend to demand a jury

trial, and for appointment of counsel.                   Given our reversal of the

summary         judgment    in   favor   of     Thorne    and   remand     for   further

consistent proceedings, including a ruling on the motion to add

defendants, Crockett's appellate issues concerning a Spears hearing

and production and discovery of evidence are moot.                         Finally, we

deny Crockett's motion for appointment of appellate counsel.

                                               I

                                 FACTS AND PROCEEDINGS

       Crockett filed a civil rights complaint against Fort Worth

Police Officer Thorne, alleging use of excessive force in arresting

Crockett.           In     his   verified      complaint,     Crockett     alleged   the

following facts.             Officer Thorne stopped Crockett and another

person on the street and asked for identification.                         The officer

       1
               Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

                                               2
then attempted to search Crockett, but he started to walk away

after the officer acknowledged that he did not have an arrest

warrant.    Officer Thorne then grabbed Crockett and struck him with

a baton.     Crockett managed to run away, but was apprehended by

another Fort Worth policeman, Officer Johnson, who was brandishing

his service revolver.      Crockett complied with Johnson's command to

kneel and was handcuffed by Johnson.               While he was thus cuffed and

kneeling, Crockett was struck by Thorne in the back of the head

with the officer's police baton, as a result of which Crockett's

head was "split open."

      Crockett filed a motion for appointment of counsel, which was

denied by the district court.                He also filed motions (1) for

discovery, (2) to amend his complaint, and (3) for a Spears

hearing, all of which were denied by the district court.

      Officer Thorne filed a motion to dismiss or for summary

judgment, attaching his affidavit and another from Officer Johnson.

In his own affidavit, Thorne averred:              He had reviewed a videotape

of   an   individual,     later    identified        as   Crockett,    robbing   a

convenience store. While patrolling the neighborhood the following

morning, Officer Thorne saw Crockett walking with a person known to

Thorne.    He did not initially recognize Crockett as the individual

seen the day before on the videotape of the store robbery, but

Crockett    immediately    began    to       run   from   the   area   as   Thorne

approached.     Thorne yelled at Crockett to stop and called for

backup.    Crockett stopped and returned to the area, whereupon he

was recognized by Officer Thorne as the individual seen on the


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videotape robbing the convenience store.       Thorne again requested

backup.   When the backup arrived in a police vehicle, Crockett

began to run.    Thorne grabbed Crockett's left arm, told him that he

was under arrest, and ordered him to place his hands on the car.

Instead, Crockett struggled with and hit Thorne with his right fist

on the left side of Thorne's face, in response to which Thorne drew

his baton and struck Crockett three times: across the chest, on the

shoulder or arm, and on the back.      Crockett continued to struggle,

eventually pulling free of his shirt and running.          As Officer

Thorne gave chase, he dropped his baton and it fell under the

patrol car.     He pursued Crockett around several apartments until

Crockett jumped a fence, only to be met by Officer Johnson who was

brandishing his service revolver.       That allowed Thorne to jump on

Crockett's back and attempt to handcuff him. Crockett continued to

struggle, however, so Officer Johnson too grappled with Crockett,

and all three men fell to the pavement.         Crockett was subdued,

handcuffed, and taken to Officer Johnson's car. Officer Thorne did

not have with him his baton or flashlight or any object that he

could have used to strike Crockett when finally apprehended.

     In his affidavit, Officer Johnson averred:       He received the

radio call from Officer Thorne, stating that he had a suspect on

foot and needed backup.    Johnson arrived in the area and observed

Thorne chasing a black male, later identified as Crockett, so

Johnson began running along a fence in the vicinity of the chase.

Crockett jumped the fence, landing close to Officer Johnson, who

aimed his revolver at Crockett.        Officer Thorne then arrived and


                                   4
attempted to handcuff Crockett, but he continued to struggle with

Thorne.     Officer    Johnson   holstered   his     weapon,   then   grabbed

Crockett.    After the three men fell to the ground, Officer Thorne

was able to handcuff Crockett.       Officer Thorne did not have a baton

or a large flashlight with him at the time of the scuffle, and

Johnson never observed Thorne striking Crockett.

     Crockett filed an opposition to Officer Thorne's dismissal and

summary judgment motion, reasserting that there were eyewitnesses

to the incident who would testify that they saw Thorne hit Crockett

in the head with a baton while he was on his knees and handcuffed.

He reiterated that he was hit three times with a baton by Thorne

after being subdued and cuffed.

     The    district   court     denied   Thorne's    motion   to     dismiss,

concluding that Crockett's complaint stated a claim upon which

relief could be granted, but the court reserved its judgment on

Thorne's motion for summary judgment.              Crockett filed another

motion for leave to file an amended complaint to add the City of

Fort Worth and its police chief as defendants (the district court

did not address this motion prior to entering summary judgment to

dismiss this case).

     Crockett filed a motion for summary judgment, again urging

that Officer Thorne had used excessive force for which Crockett is

entitled to damages.     The district court denied Crockett's motion

for summary judgment after determining that he had failed to

present any evidence that would enable the court to decide that no

genuine issues of material fact remained for trial.


                                      5
     The   district       court   granted    Thorne's   motion     for   summary

judgment, ruling on the basis of the affidavits submitted that

Thorne had carried his initial burden of demonstrating the lack of

a genuine issue of fact, that Crockett had submitted no summary-

judgment evidence because he had not submitted any statement made

under oath, and that Thorne thus was entitled to judgment as a

matter of law.

                                        II

                                    ANALYSIS

     On appeal, Crockett insists that the district court erred in

granting Thorne's motion for summary judgment. Crockett notes that

the court's order was based on the mistaken conclusion that he had

failed to submit any summary judgment evidence.            In arguing again

that his witnesses would testify that they saw Thorne hitting

Crockett with the baton while he was on his knees, Crockett

correctly notes that his verified complaint meets the evidentiary

requirements for opposing summary judgment.                  Complaints and

other submissions to the court that are made under penalty of

perjury    are    considered      competent    summary-judgment      evidence.

Nissho-Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir.

1988). The party moving for summary judgment must "demonstrate the

absence of a genuine issue of material fact, but need not negate

the elements of the nonmovant's case." Little v. Liquid Air Corp.,

37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotations

and citation omitted).

     "[A]ll      claims    that   law   enforcement     officers    have    used


                                        6
excessive      force--deadly        or    not--in       the     course    of   an   arrest,

investigatory stop, or other `seizure' of a free citizen should be

analyzed    under        the    Fourth    Amendment       and    its     `reasonableness'

standard . . . ."               Graham v. Connor, 490 U.S. 386, 395 (1989).

Crockett's assertions in his complaint, made under penalty of

perjurySQthat he was struck three times in the head by Thorne with

his baton after Crockett had been captured and handcuffed, causing

his head to "split open"SQwere directly contrary to the facts set

forth in the affidavits submitted by Thorne and Johnson denying

that such force was used following Crockett's capture.                                These

contrary statements are sufficient to create a genuine issue of

material fact regarding the application of force vel non, and

reasonableness of the degree of the force, if any, used by Thorne.

The district court erred in granting summary judgment in the face

of this disputed issue of fact.                     See Wilson v. Ector County Jail,

No. 93-8877, slip op. at 5, (5th Cir. July 22, 1994) (unpublished;

copy attached) (plaintiff's complaint and other submissions made

under penalty of perjury that directly contradicted the affidavits

submitted      by    the       defendants       precluded     the      grant   of   summary

judgment); Johnson v. Dubroc, No. 92-3452, slip op. at 5-7 (5th

Cir.    Aug.       11,   1993)     (unpublished;          copy    attached)     (inmate's

allegations, in his verified complaint, of the use of excessive

force by       a    prison      guard    were       sufficient   to     preclude    summary

judgment).         We are, therefore, constrained to remand this case for

further proceedings.

       Crockett contends that the district court also committed error


                                                7
in failing to conduct a Spears hearing and in denying Crockett's

motion for discovery and production of documents.            He argues that

these rulings prevented him from showing that there are genuine

issues of material fact for trial and, thus, violated his due

process   rights.    Given     our   holding    that    Crockett's     verified

complaint was sufficient to create an issue of fact for trial and

thus avoid summary judgment, this contention is moot.

      As he did in the district court, Crockett also requests that

we appoint counsel for him.          He argues that the district court

erred in refusing to appoint trial counsel, insisting that his case

involves issues too complex for him to represent himself.                    He

contends that he cannot investigate the case and that he is not

capable of conducting direct and cross-examination of the witnesses

at trial.

      The district court may appoint counsel in civil rights cases

presenting "exceptional circumstances."             Ulmer v. Chancellor, 691

F.2d 209, 212 (5th Cir. 1982).            Factors to be considered, among

others, are the complexity of the issues and the plaintiff's

ability to represent himself adequately.            Id. at 213.   Crockett's

case is not factually or legally complex.               Also, his pleadings

demonstrate an ability to represent himself adequately.                As such,

the   district   court   did   not   abuse    its    discretion   in    denying

Crockett's motions for appointment of counsel; for the same reason

we deny his motion for appointment of counsel on appeal.

      Crockett asserts that the district court erred in denying

three motions to amend his complaint.          After responsive pleadings


                                      8
have been filed, leave to amend a party's pleadings "shall be

freely given when justice so requires."          Fed. R. Civ. P. 15(a).   A

district court's decision to grant or deny leave to amend is not

broad enough to permit denial "if [it] lacks a substantial reason

to deny leave."     Jamieson v. Shaw, 772 F.2d 1205, 1208 (5th Cir.

1985) (internal quotations and citations omitted).               A pro se

petitioner should be permitted to amend his petition when it is

clear that there is a ground for relief.          Gallegos v. La. Code of

Criminal Procedures Art. 658, 858 F.2d 1091, 1092 (5th Cir. 1988).

     Crockett argues that the district court should have allowed

him to amend his complaint to include a punitive-damages claim

against    Thorne   individually.       A    defendant   who   demonstrates

"reckless or callous indifference to the federally protected rights

of others" or is "motivated by evil motive or intent" can be liable

for punitive damages under § 1983.          Smith v. Wade, 461 U.S. 30, 56

(1983). Based on Crockett's allegations that Thorne used excessive

force, Crockett was entitled to seek punitive damages from Thorne.

The district court did not give reasons for denying Crockett's

motion to amend.    Facially, then, the court abused its discretion

in not permitting Crockett to amend his complaint to include such

a claim.

     Crockett makes the same argument regarding the court's failure

to permit him to amend his complaint to demand a jury trial.

Fed. R. Civ. P. 38(b) requires that a party demand a trial by jury

on any issue triable of right by a jury by "serving upon the other

parties a demand therefor in writing . . . not later than 10 days


                                    9
after the service of the last pleading directed to such issue."       A

party's failure timely to serve and file a demand as required by

subparagraph (b) of Rule 38 "constitutes a waiver by the party of

trial by jury."    Fed. R. Civ. P. 38(d).   Officer Thorne filed his

answer on August 21, 1991, yet Crockett did not file his motion to

amend to add the jury demand until October 27, 1992.        Thus, the

amendment was late as a Rule 38 demand for a jury trial.      Crockett

did not offer any reasons for his delay in making a jury demand in

his motion, and he has presented none on appeal.       Neither has he

alleged that he was ignorant of the Rule 38 requirement that a jury

demand must be made within specified time limits. Therefore, the

district court did not abuse its discretion in denying the motion.

     The district court has yet to rule on Crockett's motion to

amend to add the City of Fort Worth and its police chief as

defendants.   The district court should address this motion on

remand.

                                  III

                             CONCLUSION

     As Crockett's complaint containing specific factual assertions

was verified, it constituted summary judgment evidence.       In this

instance that evidence is sufficient to create a genuine dispute of

material   fact.     Therefore,   summary   judgment   dismissing   his

complaint as a matter of law is precluded.     Particularly in light

of his pro se status, Crockett was entitled to amend his complaint

to assert a claim of punitive damages; the district court's refusal

to grant leave thus to amend was an abuse of discretion.            We


                                  10
therefore reverse the court's summary judgment of dismissal and its

denial of Crockett's punitive damages motion to amend, remanding

this case for further proceedings consistent with these holdings.

We affirm, however, the court's refusal to appoint counsel for

Crockett,   and   we   deny   Crockett's   motion   for   appointment   of

appellate counsel as well.        His complaints regarding a Spears

hearing and his motion for production and discovery are moot in

light of our reversal of the summary judgment; neither can he

prevail in his untimely attempt to obtain a civil jury trial.           On

remand, however, the district court should address Crockett's

motion to amend his complaint to add parties defendant, no action

having yet been taken by the district court on that pending motion.

     AFFIRMED in part, REVERSED and REMANDED in part.




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