   Case: 09-40532       Document: 00511029035          Page: 1    Date Filed: 02/17/2010




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

                                                 FILED
                                                                          February 17, 2010
                                     No. 09-40532
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk




JODY MCCREARY,

                                                   Plaintiff-Appellant,

versus

WARDEN LOYD MASSEY; LIEUTENANT CHRISTOPHER HOLMAN;
SERGEANT DOUGLAS GREGORY; SERGEANT FRANCIS SWEENEY;
VIRGINIA HENSEL; PA BUCHANAN,

                                                   Defendants-Appellees.




                   Appeal from the United States District Court
                         for the Eastern District of Texas
                              USDC No. 6:08-CV-91




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-40532    Document: 00511029035      Page: 2   Date Filed: 02/17/2010

                                   No. 09-40532

      Jody McCreary brought claims of deliberate indifference and/or excessive
use of force pursuant to 42 U.S.C. § 1983 against various officials of the Texas
prison system. The district court granted defendants’ motion for summary judg-
ment. McCreary appeals and moves for appointment of counsel and to allow at-
tachments to his appellate brief. We AFFIRM in part, VACATE in part, and
REMAND.


                                        I.
      McCreary appeals pro se and in forma pauperis. We review a summary
judgment de novo. Machinchick v. P.B. Power, Inc., 398 F.3d 345, 350 (5th Cir.
2005). Summary judgment is appropriate where there is no genuine issue as to
any material fact and the movant is entitled to judgment as a matter of law.
Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003).


                                        II.
      McCreary alleges excessive use of force and deliberate indifference in four
instances in which his left arm was taken out of a sling and handcuffed behind
his back, causing his shoulder to dislocate because of a pre-existing condition.
The core inquiry in an Eighth Amendment excessive use of force claim is “wheth-
er 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). A plaintiff must allege and prove “unnecessary and wanton infliction of
pain.” Id. at 5. A court may consider “the need for application of force, the rela-
tionship between that need and the amount of force used, the threat reasonably
perceived by the responsible officials, and any efforts made to temper the severi-
ty of a forceful response.” Id. at 7.
      Deliberate indifference to a prisoner’s serious medical needs is an Eighth
Amendment violation and states a cause of action under § 1983. Estelle v. Gam-

                                        2
   Case: 09-40532    Document: 00511029035      Page: 3   Date Filed: 02/17/2010

                                    No. 09-40532

ble, 429 U.S. 97, 105-07 (1976). The decision of security personnel to force an
inmate to engage in activity they know may aggravate a serious physical ailment
would constitute deliberate indifference. Jackson v. Cain, 864 F.2d 1235, 1246
(5th Cir. 1989). Deliberate indifference requires a showing that defendants
(1) were aware of facts from which an inference of excessive risk to the prisoner’s
health or safety could be drawn and (2) actually drew an inference that such po-
tential for harm existed. Herman v. Holiday, 238 F.3d 660, 664 (5th Cir. 2001).


                                        III.
                                         A.
      The first incident occurred on May 30, 2007, and involved Lt. Christopher
Holman. McCreary was in administrative segregation, awaiting a hearing. Pri-
son policy requires inmates to be handcuffed during transport to the hearing.
The normal procedure is to handcuff the arms behind the back unless a prisoner
has a front-handcuff pass. Prisoners do not keep passes on their person; instead,
they are kept on record with the medical unit. McCreary was wearing a sling
and asked Holman to handcuff his arms in front, insisting he had a pass. Hol-
man stated in his affidavit that he called medical personnel and was told that
McCreary did not have a front-handcuff pass. Holman then told McCreary that
he could not attend the hearing unless he was handcuffed behind his back. Mc-
Creary complied, causing his shoulder to dislocate.
      This first incident does not amount to excessive use of force or deliberate
indifference. McCreary had to be handcuffed to attend the hearing, and there
is no evidence that he had a front-handcuff pass. These facts do not amount to
unnecessary and wanton infliction of pain, so there is insufficient evidence to
create an issue of material fact.




                                         3
   Case: 09-40532   Document: 00511029035      Page: 4   Date Filed: 02/17/2010

                                  No. 09-40532

                                       B.
      The second incident was on June 11, 2007, in the course of another trans-
fer from administrative segregation to a hearing, this time involving Sgt. Francis
Sweeney. McCreary was wearing a sling and insisted he had a sling pass. Swee-
ney called medical personnel and was informed that McCreary did not have a
front-handcuff pass. Again, McCreary complied and allowed Sweeney to hand-
cuff him behind his back so that he could attend the hearing, which caused his
shoulder to dislocate. On these facts, summary judgment was appropriate. The
record shows that McCreary obtained a front-cuff pass on June 11 but does not
establish whether the pass was in effect when Sweeney called the medical unit.
There is no evidence that Sweeney acted in disregard of McCreary’s pass with
the malicious intent to harm.


                                       C.
      The third incident occurred on June 22, 2007, and once again involved
Holman. The facts are in material dispute. Holman stated in his affidavit that
McCreary threw an unknown liquid onto Officer Hernandez. When an inmate
assaults an officer, the inmate is immediately secured, then prison officials in-
quire whether the inmate has a medical pass. In accordance with these proce-
dures, Holman ordered McCreary to be handcuffed behind his back while his cell
was searched. Holman avers that he then checked with medical personnel but
was told McCreary did not have a front-handcuff pass. Holman argues that pur-
suant to that information, he followed medical and security procedures and con-
tinued to secure McCreary with his arm behind his back.
      McCreary controverts Holman’s account. In his opposition to summary
judgment, McCreary stated that he had a front-handcuff pass on June 22. The
record reveals that to be true. R. 251. The record also contains a handwritten
note from K. Wardell to Lt. Holman on June 13 in which Wardell informed Hol-

                                        4
   Case: 09-40532    Document: 00511029035      Page: 5    Date Filed: 02/17/2010

                                  No. 09-40532

man that McCreary had a front-handcuff pass. R. 248. The note states, “Lt.
Holman, I [checked] all the way back to 4-29-07. This is the 1st order for front
pass. It expires 7-11-07. K. Wardell.” R. 248. The note was written at the bot-
tom of a printed email in which a prison official had ordered a front-cuff pass for
McCreary.
      The district court did not address this evidence, despite that McCreary, in
his opposition to summary judgment, stated that evidence in the record showed
he had a front-cuff pass on June 22. McCreary also objected on the ground that
Holman had failed to state which member of medical personnel told him that
McCreary was not on the pass list. Thus, district court failed to address Mc-
Creary’s objections or the relevant evidence; instead, it treated Holman’s con-
tested affidavit as established fact.
      The note personally addressed to Holman creates a genuine issue of mate-
rial fact, because it suggests Holman may have known that McCreary had a
front-handcuff pass at the time of the June 22 incident. Holman avers that the
medical unit informed him that McCreary did not have a pass, but Holman has
not established the source of that misinformation, and the record does not con-
tain evidence from medical personnel that supports Holman’s version. The fac-
tual dispute as to Holman’s knowledge affects whether Holman acted in good
faith and is therefore material to the excessive-use-of-force claim and to the issue
of deliberate indifference.


                                        D.
      The last incident arose out of an argument with Sgt. Douglas Gregory on
January 25, 2008, in the prison dining area. Gregory stated that McCreary was
using his shirt as a makeshift sling and had his left arm inside his shirt. Greg-
ory insisted that McCreary put his left arm through his shirt sleeve. As a gener-
al matter, prisoners are not allowed to place their arms inside their shirts be-

                                         5
   Case: 09-40532   Document: 00511029035       Page: 6   Date Filed: 02/17/2010

                                  No. 09-40532

cause of the risk that they could hide contraband and weapons. According to
Gregory, McCreary was not wearing a proper sling, became argumentative, and
created a security problem. Gregory restrained McCreary and handcuffed him
behind his back. He then allegedly called medical personnel, who informed him
that McCreary did not have a front-cuff pass.
      McCreary’s account differs significantly. He stated that he was not using
his shirt as a makeshift sling but was rather wearing a proper medically-issued
sling. He could not put his arm through his shirt sleeve, because it was too pain-
ful to move his arm, so he asked Gregory to send him to the medical unit for help
in putting his arm through his sleeve. He informed Gregory that he had a medi-
cal pass for his sling and that his shoulder was severely injured. Gregory then
became agitated, grabbed McCreary by the shoulder, forced his arm behind his
back, and caused the shoulder to dislocate.
      McCreary has filed a verified complaint whose allegations contradict Greg-
ory’s version of the facts. “On summary judgment, factual allegations set forth
in a verified complaint may be treated the same as when they are contained in
an affidavit.” Hart, 343 F.3d at 765. McCreary’s allegations support a claim of
deliberate indifference against Gregory.
      A genuine issue of material fact exists as to whether Gregory dislocated
McCreary’s shoulder with knowledge of his serious physical ailment. We recog-
nize that prison officers at times must use force to maintain order and that that
need is heightened where an inmate’s unruliness may create a general distur-
bance. We take no position as to whether Gregory used excessive force or acted
with deliberate indifference. The district court on remand should establish the
relationship between the need for force and the amount used in this incident,
any threat that Gregory could have reasonably perceived, and any efforts made




                                        6
   Case: 09-40532       Document: 00511029035          Page: 7    Date Filed: 02/17/2010

                                       No. 09-40532

to temper the severity of the forceful response.1


                                             IV.
       For the reasons stated, the summary judgment as to the events of May 30
and June 11, 2007, is AFFIRMED. The judgment is VACATED as to June 22,
2007 and January 25, 2008, and this matter is REMANDED for further proceed-
ings. The motions for appointment of counsel and to allow attachments are
DENIED.
       We express no view on what decisions or ultimate rulings the district court
should make on remand. Also, we do not address defendants’ claim of qualified
immunity. The issues we have addressed go to the first prong of the qualified-
immunity analysis, which is whether there was a constitutional violation in the
first place. Where there is a violation, the defendants, in their individual capaci-
ties, still have an opportunity to assert that the constitutional right was not
clearly established at the time or that their conduct was not objectively unrea-
sonable.




       1
         McCreary states that as a G5 prisoner, he was not allowed to eat with the general
population and that all G5 offenders stay on close custody during meals and are strip-searched
before they leave their cell for breakfast. The district court on remand should consider, inter
alia, those facts in assessing the amount of force that was appropriate and the threat that
Gregory reasonably could have perceived.

                                              7
