     Case: 11-10758     Document: 00511909333         Page: 1     Date Filed: 07/03/2012




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

                                                                            FILED
                                                                            July 3, 2012
                                     No. 11-10758
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BENNY FALCON,

                                                  Plaintiff-Appellant

v.

TYLER HOLLY, CO III,

                                                  Defendant-Appellee


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 5:09-CV-66


Before HIGGINBOTHAM, DAVIS, and ELROD, Circuit Judges.
PER CURIAM:*
        Benny Falcon, Texas prisoner # 664986, appeals the district court’s order
granting summary judgment in favor of Tyler Holly, an officer employed by the
psychiatric John T. Montford Unit of the Texas Department of Criminal Justice,
in Falcon’s 42 U.S.C. § 1983 action in which Falcon alleged that Holly used
excessive force against him. Falcon argues that there are genuine issues of
material fact concerning the circumstances surrounding the use of force
precluding the granting of a motion for summary judgment; that the district

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-10758

court erred in finding he did not present any competent summary judgment
evidence as his allegations in his verified complaint and other verified pleadings
as well as his sworn testimony at the Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985) hearing constitute competent summary judgment evidence; and that the
district court improperly resolved the disputed issues of material fact and made
credibility determinations.
      By declaration made under penalty of perjury, Falcon alleged that Holly
used excessive force against him without provocation or resistance, causing him
to suffer a back injury for which he continues to take pain medication. Viewing
Falcon’s allegations in his verified pleadings in the light most favorable to
Falcon, he has stated a claim for violation of a constitutional right. See Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992).
      The resolution of whether or not Holly used unreasonable force under the
circumstances requires factfinding and credibility determinations. See Tarver
v. City of Edna, 410 F.3d 745, 753 (5th Cir. 2005). The district court erred in
finding that Falcon did not present any evidence to support his allegations; his
verified complaint and other verified pleadings serve as competent summary
judgment evidence. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003). His
sworn testimony at the Spears hearing was also relevant to the court’s summary
judgment review. See Eason v. Holt, 73 F.3d 600, 602-03 (5th Cir. 1996). Falcon
is correct that the district court improperly credited Holly’s version of the events;
Falcon’s credibility is not an issue appropriate for determination on summary
judgment. See Tarver, 410 F.3d at 753. Considering the evidence in the light
most favorable to Falcon, it is not possible to conclude as a matter of law that
Holly acted in an objectively reasonable manner, which would entitle him to
qualified immunity. See Wernecke v. Garcia, 591 F.3d 386, 392 (5th Cir. 2009);
Tarver, 410 F.3d at 753-54. The district court also erred in denying Falcon’s
claim in part because he did not show that he suffered more than a de minimis
injury. See Wilkins v. Gaddy, 130 S. Ct. 1175, 1178-79 (2010) (holding that the

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                                  No. 11-10758

“the core judicial inquiry” in excessive force cases was not whether “a certain
quantum of injury was sustained” but rather “whether force was applied in a
good-faith effort to maintain or restore discipline, or maliciously and sadistically
to cause harm.” ). Therefore, the district court erred in granting the motion for
summary judgment for Holly on the excessive force claim. Accordingly, we
vacate the summary judgment and remand the claim for further proceedings
consistent with this opinion.
      Falcon also argues that the district court abused its discretion in denying
his motion for appointment of counsel. Because Falcon has not shown that the
case involves exceptional circumstances, the district court did not abuse its
discretion in denying his motion for appointment of counsel. See Ulmer v.
Chancellor, 691 F.2d 209, 212-13 (5th Cir. 1982). Because Falcon has not shown
that exceptional circumstances warrant the appointment of counsel at this time,
his motion for appointment of counsel on appeal is denied. See Cooper v. Sheriff,
Lubbock Cnty., Tex., 929 F.2d 1078, 1084 (5th Cir. 1991).
      VACATED AND REMANDED; MOTION FOR APPOINTMENT OF
COUNSEL DENIED.




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