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

                                                                FILED
                               No. 08-60416                     June 9, 2009
                             Summary Calendar
                                                          Charles R. Fulbruge III
                                                                  Clerk
DERRICK DARNELL PAYNE

                                          Plaintiff-Appellee

v.

KENNY DICKERSON, Sheriff, in his individual and official capacities; RIC
PRECIADO, Marshall County Deputy, in his individual and official capacities

                                          Defendants-Appellants


                 Appeal from the United States District Court
                   for the Northern District of Mississippi
                            USDC No. 3:07-CV-3


Before DAVIS, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
      Kenny Dickerson and Ric Preciado appeal the district court’s judgment
denying in part their motion for summary judgment based on qualified
immunity. Derrick Darnell Payne has filed a motion to dismiss the appeal for
lack of jurisdiction, arguing that the denial of a motion for summary judgment
based on qualified immunity is not immediately appealable. “The denial of a


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 08-60416

motion for summary judgment based on qualified immunity is immediately
appealable under the collateral order doctrine to the extent that it turns on an
issue of law.” Flores v. City of Palacios, 381 F.3d 391, 393 (5th Cir. 2004)
(internal quotation marks and citation omitted). The court has jurisdiction to
determine as a matter of law whether Preciado and Dickerson are entitled to
qualified immunity after accepting all of Payne’s factual allegations as true. See
Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007). Accordingly, Payne’s motion
to dismiss is denied.
      Preciado argues that the district court erred in determining that he was
not entitled to qualified immunity from liability on Payne’s excessive use of force
claim. Preciado argues that Payne has not asserted that he suffered at least
some injury as a result of the excessive use of force and that his actions were not
excessive or objectively unreasonable because he had to respond and subdue
Payne when Payne resisted arrest.
      Preciado has not shown that the district court erred in determining he was
not entitled to qualified immunity from liability on Payne’s excessive use of force
claim.   Payne has alleged the violation of a clearly established Fourth
Amendment’s right not to be subjected to excessive force by police officers. See
Colston v. Barnhart, 130 F.3d 96, 102 (5th Cir. 1997). Payne’s allegations in his
verified complaint may serve as competent summary judgment evidence. See
King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994). Payne has made sufficient
allegations that he suffered more than a de minimis injury as a result of the
alleged excessive use of force as he alleges that he was thrown head first into a
ditch and that he now suffers chronic migraine headaches. Payne’s chronic
migraine headaches could have been caused by hitting his head when he was
thrown down head first into the ditch. Payne need not show a substantial
injury. See Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999). Payne does
not concede that he was resisting arrest when Preciado used force against him.
Rather, Payne alleged that he tried to stop Preciado from searching the vehicle

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by moving to block the passenger door of the vehicle. Preciado has not shown
that, under Payne’s version of the facts, Preciado’s actions were objectively
reasonable “in light of clearly established law at the time of the conduct in
question.” See Freeman, 483 F.3d at 410-11. Therefore, he has not shown that
the district court erred in determining that he was not entitled to qualified
immunity. See id.
      Dickerson argues that the district court erred in determining that he was
not entitled to qualified immunity from liability on Payne’s claim that
Dickerson’s interrogation of him was coercive. Dickerson argues that he advised
Payne of his Miranda1 rights; Payne signed a waiver of those rights; there is no
evidence that Payne was beaten or coerced into providing a statement; and
Payne voluntarily signed a statement in which he confessed to a crime.
Dickerson argues that the interrogation lasted only one hour and that Payne’s
allegations that he was denied water and that Dickerson threatened to arrest
other family members are not so egregious as to “shock the conscience.”
      Dickerson has not shown that the magistrate judge erred in determining
that he was not entitled to qualified immunity. Payne’s allegations in his
verified complaint may serve as competent summary judgment evidence. See
King, 31 F.3d at 346. Payne has alleged a violation of a clearly established
constitutional substantive due process right not to be subjected to coercive
interrogation. See Chavez v. Martinez, 538 U.S. 760, 773-75 (2003). Payne’s
allegations indicate that the circumstances surrounding the interrogation were
coercive. Dickerson placed Payne into a hot closed police car on a hot day in
June for approximately 30 minutes after his arrest and denied him water from
the time of his arrest until the next day after the interrogation. Although Payne
repeatedly requested an attorney, Dickerson did not allow Payne to call an
attorney, did not provide an attorney, and continued to interrogate Payne even


      1
          Miranda v. Arizona, 384 U.S. 436 (1966).

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though he had asserted his right to counsel. Dickerson arrested Payne’s cousin,
Chester Faulkner, and two other family members; and Dickerson threatened to
arrest Payne’s mother. Dickerson has not shown that, under Payne’s version of
the facts, his actions were objectively reasonable “in light of clearly established
law at the time of the conduct in question.” See Freeman, 483 F.3d at 410-11; see
also Chavez, 538 U.S. at 774-77, 780. Therefore, Dickerson has not shown that
the district court erred in determining that he was not entitled to qualified
immunity on Payne’s substantive due process claim.
      APPEAL DISMISSED.




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