     Case: 13-30793      Document: 00512573985         Page: 1    Date Filed: 03/26/2014




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

                                                                                  FILED
                                    No. 13-30793                            March 26, 2014
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
JAMES TYLER,

                                                 Plaintiff-Appellee

v.

JIMMY SMITH,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:12-CV-222


Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
       James Tyler, Louisiana prisoner # 372199, filed and subsequently
amended a 42 U.S.C. § 1983 lawsuit against three officials of the Louisiana
State Penitentiary. The relevant portion of the complaint was that Colonel
Jimmy Smith used excessive force by sadistically and maliciously spraying
Tyler with mace while he was locked in his cell because Tyler had written a
letter complaining about prison personnel.               Smith moved for summary


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 13-30793    Document: 00512573985     Page: 2     Date Filed: 03/26/2014


                                 No. 13-30793

judgment, asserting qualified immunity among other things. The district court
denied the motion finding that Tyler’s verified complaint and summary-
judgment affidavits established a genuine issue of material fact “regarding
whether [Tyler] sustained an injury, the need for the application of force, the
relationship between the need and use of force, the threat perceived by [Smith]
and efforts made to temper the severity of the response.”
      Smith appeals the denial of his summary judgment motion based on
qualified immunity. The denial of summary judgment based upon qualified
immunity is a collateral order that may be an appealable final decision.
Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). However, the court’s jurisdiction
to review the denial is “significantly limited,” extending to questions of law
only. Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc).
      When prison officials stand accused of using excessive force in violation
of the Eighth Amendment, “the core judicial inquiry is . . . 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, 6-7 (1992).
Smith concedes that he released mace into Tyler’s cell, but he argues that there
is no evidence other than Tyler’s allegations that he acted with a culpable state
of mind. This argument is directed to the truth of the verified allegations made
by Tyler that Smith acted without provocation and with malicious intent. See
Kinney, 367 F.3d at 346. Accordingly, the court does not have jurisdiction to
review the district court’s conclusion that there was a genuine factual dispute
whether Smith used excessive force.
      Tyler’s motion to dismiss the appeal or, alternatively, stay the
proceedings because Smith did not comply with Federal Rule of Appellate
Procedure 10 is DENIED.
      APPEAL DISMISSED; MOTION DENIED.



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