     Case: 15-30228       Document: 00513504458         Page: 1     Date Filed: 05/13/2016




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

                                     No. 15-30228                                 FILED
                                   Summary Calendar                           May 13, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
JOHN WESTLEY,

                                                  Plaintiff - Appellant

v.

SERGEANT HOWARD,


                                                  Defendant - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:14-CV-2781


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Proceeding pro se and in forma pauperis (IFP) on appeal, as he did in
district court, John Westley, Louisiana prisoner # 110980, filed a 42 U.S.C.
§ 1983 complaint against Sergeant Howard, contending he used excessive force
by slamming Westley to the ground while escorting him to the medical center
after a physical altercation with another inmate.



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 15-30228

      The court dismissed the complaint as frivolous and for failure to state a
claim, determining Howard’s alleged use of force did not violate the Eighth
Amendment. Accordingly, our review is de novo. E.g., Geiger v. Jowers, 404
F.3d 371, 373 (5th Cir. 2005). A claim is “frivolous if it does not have an
arguable basis in fact or law”. Brewster v. Dretke, 587 F.3d 764, 767 (5th Cir.
2009). To determine if a complaint fails to state a claim, our court applies the
same standard of review applicable to dismissals made pursuant to Federal
Rule of Civil Procedure 12(b)(6), and will uphold a dismissal if, “taking the
plaintiff's allegations as true, it appears that no relief could be granted based
on the plaintiff's alleged facts”. Samford v. Dretke, 562 F.3d 674, 678 (5th Cir.
2009) (quoting Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999)); see also
28 U.S.C. § 1915(e)(2)(B).
      On appeal, Westley further asserts Sergeant Howard slammed him to
the ground after he was restrained, and frequently uses excessive force against
inmates.   He did not, however, present these assertions in district court;
therefore, they will not be considered here. See Leverette v. Louisville Ladder
Co., 183 F.3d 339, 342 (5th Cir. 1999).
      For his excessive-force claim, Westley fails to show the court erred in
dismissing his claim. Regarding the extent-of-injury factor used in analyzing
excessive-force claims, Westley complains of significant injuries, including
memory loss, partial use of his back, dizziness, and blackouts. See Hudson v.
McMillian, 503 U.S. 1, 7 (1992).      His complaints are contradicted by the
documents he attached to his amended complaint, which reflected only minor
bruises and scratches.       In examining the remaining Hudson factors, we
consider: “the need for application of force, the relationship between that need
and the amount of force used, the threat reasonably perceived by the
responsible officials, and any efforts made to temper the severity of a forceful



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                                 No. 15-30228

response”. Id. (internal quotation marks omitted). In that regard, Westley
admitted in his amended complaint that Officers were responding to a fight
between Westley and another inmate, and Sergeant Howard acted because he
“believed [Westley] was not cooperating to [t]he fullest”. In the light of the
foregoing, Westley’s appeal is frivolous. See id.
      Our dismissal of Westley’s complaint as frivolous, and the district court’s
dismissal on the same ground, count as two strikes for purposes of 28 U.S.C.
§ 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
Westley is hereby cautioned that, if he accumulates three strikes, he will no
longer be allowed to proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility, unless he “is under imminent danger
of serious physical injury”. § 1915(g).
      DISMISSED; SANCTION WARNING ISSUED.




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