     Case: 16-30961      Document: 00514345591         Page: 1    Date Filed: 02/12/2018




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

                                      No. 16-30961                                FILED
                                                                           February 12, 2018
                                                                             Lyle W. Cayce
GEORGE ANDREW PRESTON,                                                            Clerk

                                                 Plaintiff-Appellant

v.

BOBBY HICKS; LIEUTENANT W. BOWIE; SERGEANT AUGUSTINE;
SERGEANT DAUZAT; SERGEANT FORD,

                                                 Defendants-Appellees


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:16-CV-562


Before WIENER, ELROD, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       George Andrew Preston, Louisiana prisoner # 543096, appeals the
district court’s dismissal of his 42 U.S.C. § 1983 complaint against five prison
officials for use of excessive force. The district court held that Preston failed to
state a claim for which relief can be granted. We AFFIRM in part, REVERSE
in part, and REMAND for further proceedings.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-30961    Document: 00514345591      Page: 2   Date Filed: 02/12/2018


                                 No. 16-30961

                 FACTUAL AND PROCEDURAL BACKGROUND
      George Preston is incarcerated in a Louisiana state prison. He filed a
civil rights complaint against Lieutenant Bobby Hicks and four other state
correctional officers under 42 U.S.C. § 1983, alleging use of excessive force in
violation of the Eighth Amendment.         Preston alleged the following in his
complaint. Sergeant Ford, with Preston nearby, opened the door to the cell of
another inmate, Jeremy Lenor. Preston ran into the cell and started “joking
around” with Lenor. Ford shouted for help from Lieutenant Bowie, Lieutenant
Hicks, Sergeant Dauzat, and Sergeant Augustine. Those other officers soon
entered the cell. Lieutenant Hicks then elbowed Preston several times in the
face. Several of the officers pulled Preston from the cell and two of them
“slammed” him to the floor. On the floor, Sergeant Augustine kept Preston’s
left arm “strained” behind him while Lieutenant Hicks allegedly pulled and
twisted Preston’s right arm. Preston then screamed that Hicks was hurting
his arm and was going to break it.
      Preston alleges that Hicks relaxed the twisting of his arm only when a
bone began protruding from his shoulder area, causing a shoulder separation.
Preston filed an administrative complaint, which was denied. The denial noted
that he had been evaluated by medical staff who reported that his “right
shoulder did not appear to be out of place.” A doctor ordered an x-ray, which
allegedly showed no fracture or dislocation.
      In a disciplinary report Preston attached to the complaint, Hicks
reported that Preston ignored an order not to enter the other cell and had
attempted to hit Lenor. Preston’s evidence included affidavits from two other
inmates who both claimed that Preston did not resist the officers and that
Hicks appeared to be twisting Preston’s arm as he screamed.




                                       2
    Case: 16-30961     Document: 00514345591       Page: 3   Date Filed: 02/12/2018


                                   No. 16-30961

      A magistrate judge determined that Preston failed to demonstrate an
Eighth Amendment claim because the officers’ use of force was not wanton or
unnecessary.     The judge found the twisting of Preston’s arm had been
necessary for restraint and the exhibits indicated the injury was not severe.
Additionally, Preston’s admission of guilt in the disciplinary report was
evidence that the force had been applied in good faith.
      Accepting the magistrate judge’s report and recommendation, the
district court dismissed Preston’s complaint pursuant to 28 U.S.C.
§§ 1915(e)(2)(B) & 1915A, after conducting an independent review of the
record. Preston appealed.


                                  DISCUSSION
      We must first assure ourselves that Preston’s appeal was timely. The
record was unclear as to when Preston filed his appeal, so we held the appeal
in abeyance and remanded for the district court to determine that question.
See Dison v. Whitley, 20 F.3d 185, 186–87 (5th Cir. 1994). The district court
found that August 24, 2016, was the date of the appeal. We accept that finding,
which makes the appeal timely.
      We review the dismissal for failure to state a claim under 28 U.S.C.
§§ 1915(e)(2)(B)(ii) & 1915A, and employ the same standard as under Federal
Rule of Civil Procedure 12(b)(6). Legate v. Livingston, 822 F.3d 207, 209–10
(5th Cir.), cert. denied sub nom. Legate v. Collier, 137 S. Ct. 489 (2016). A
complaint fails to state a claim on which relief may be granted when it does
not “contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).




                                         3
    Case: 16-30961    Document: 00514345591      Page: 4   Date Filed: 02/12/2018


                                  No. 16-30961

      We must also consider Preston’s suit in light of his status as a pro se
litigant. His complaint is therefore “held to less stringent standards than
formal pleadings drafted by lawyers.” Calhoun v. Hargrove, 312 F.3d 730, 733
(5th Cir. 2002) (quoting Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th
Cir. 2002)).
      In assessing a claim of excessive force under the Eighth Amendment, our
focus is on “whether force was applied in a good-faith effort to maintain or
restore discipline, or maliciously and sadistically to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 7 (1992). The claim is evaluated under these factors:
(1) “the extent of injury suffered by an inmate,” (2) “need for application of
force, [3] the relationship between that 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.’” Id. (quoting Whitley
v. Albers, 475 U.S. 312, 321 (1986)). Once a prisoner has been subdued, using
gratuitous force on him is unreasonable. Cowart v. Erwin, 837 F.3d 444, 454
(5th Cir. 2016). We may consider the extent of Preston’s injuries in evaluating
whether the force was “reasonable,” but he “does not lose his ability to pursue
an excessive force claim merely because he [had] the good fortune to escape
without serious injury.” Wilkins v. Gaddy, 559 U.S. 34, 38 (2010).
      Preston concedes that he ran into the cell of another inmate, ignored
verbal commands to the contrary, and caused Sergeant Ford to call for help.
He nonetheless alleges that following his removal from the cell and being
placed “face down on the ground,” his right arm was pulled and twisted by
Lieutenant Hicks, causing Preston to scream in pain.            While Sergeant
Augustine merely “strained” his left arm, Preston directed his screams only to
Lieutenant Hicks in fear his right arm was about to be broken.




                                        4
     Case: 16-30961      Document: 00514345591        Page: 5     Date Filed: 02/12/2018


                                     No. 16-30961

       According to Preston, “[a]t no time did [he] resist any of the officers,” and
Hicks only stopped twisting his arm after “observing a bone protruding” from
his shoulder. Affidavits from two other inmates similarly allege that Preston
did not resist the officers after being removed from the cell. It is proper at this
stage of the proceedings to rely on these documents attached to the complaint
because neither party disputes their authenticity and they were “sufficiently
referenced in the complaint.” See Walch v. Adjutant Gen.’s Dep’t of Tex., 533
F.3d 289, 294 (5th Cir. 2008). Preston stated that he suffered a separated
shoulder as a result of the incident. 1
       Because we must accept Preston’s plausible allegations as true at this
stage in the proceedings, he has alleged facts sufficient to state a claim that
Lieutenant Hicks used excessive force after he was already on the floor. The
medical documentation indicates that Preston’s injuries might not have been
severe, but this does not demonstrate that the use of force was merely “a good-
faith effort to maintain or restore discipline.” See Cowart, 837 F.3d at 452
(citation omitted).
      Based on Preston’s own allegations, however, the other defendant
officers reasonably perceived a threat requiring some degree of force in earlier
removing him from the cell. See id. at 453. Although both Sergeant Augustine
and Lieutenant Hicks held Preston to the floor, Preston alleges that Augustine
only caused his left arm to become “strained.” Such a “strain” falls within a de
minimis category of force “of a character far less intense and less calculated to
produce real physical harm[.]” Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir.
1999). Accordingly, Preston alleges sufficient facts to maintain a claim only
against Lieutenant Hicks.



       1Preston also claims that when Officer Hicks entered the cell, he repeatedly elbowed
Preston in the face. Preston does not allege injury as a result of that use of force.


                                            5
    Case: 16-30961    Document: 00514345591    Page: 6   Date Filed: 02/12/2018


                                No. 16-30961

      We AFFIRM the dismissal of claims against Lieutenant Bowie, Sergeant
Ford, Sergeant Dauzat, and Sergeant Augustine. We REVERSE the dismissal
of the claim against Lieutenant Hicks and REMAND for further proceedings
consistent with this opinion.




                                     6
