     Case: 10-20141     Document: 00511533337         Page: 1     Date Filed: 07/07/2011




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

                                                                            FILED
                                                                            July 7, 2011

                                       No. 10-20141                        Lyle W. Cayce
                                                                                Clerk

MICHAEL LEE WILLIAMS,

                                                  Plaintiff–Appellant,
v.

SERGEANT VALENTI; LUKER, Captain; CAPTAIN BREWER,

                                                  Defendants–Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CV-4063


Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
        Michael Lee Williams, Texas Prisoner # 513998, brought this pro se action
under 42 U.S.C. § 1983, alleging violations of the Eighth Amendment arising out
of an altercation with Sergeant Anthony Valenti, a prison guard. We affirm the
district court’s grant of summary judgment in favor of the defendants.
                                              I
        After Williams and Valenti were involved in an altercation outside the
prison medication center, Williams filed this § 1983 suit against Valenti and

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-20141

Captains Luker and Brewer. The defendants moved for summary judgment
based on qualified immunity, and the district court granted summary judgment
in their favor. The court determined that Luker and Brewer did not participate
in the use of force against Williams, and that Valenti did not use constitutionally
impermissible force. Williams timely appealed.
                                                  II
       We first address Williams’s Eighth Amendment excessive force claims. We
undertake a “two-pronged analysis to determine whether a government official
is entitled to qualified immunity, inquiring: (1) whether the facts that the
plaintiff has alleged make out a violation of a constitutional right; and (2)
whether the right at issue was ‘clearly established’ at the time of the defendant’s
alleged misconduct.”1 We may exercise “discretion in deciding which of the two
prongs of the qualified immunity analysis should be addressed first in light of
the circumstances in the particular case at hand.”2 In this case, we find it
appropriate to determine initially whether a constitutional violation occurred.
       We review de novo a district court’s grant of summary judgment on
qualified immunity grounds,3 “using the same standard as that employed by the
district court under Rule 56.”4 “Summary judgment is warranted ‘if the movant
shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’”5 “There is no genuine issue for trial
if the record, taken as a whole, could not lead a rational trier of fact to find for

       1
         Jennings v. Patton, - - - F.3d - - - -, 2011 WL 2420086, at *3 (5th Cir. June 17, 2011)
(citing Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009)).
       2
           Pearson, 129 S. Ct. at 818.
       3
           Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009).
       4
       Carnaby v. City of Houston, 636 F.3d 183, 187 (5th Cir. 2011) (internal quotation
marks and citation omitted).
       5
           Id. (quoting FED. R. CIV. P. 56(a)).

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                                          No. 10-20141

the non-moving party.”6 “We review evidence in the light most favorable to the
nonmoving party, but conclusional allegations and unsubstantiated assertions
may not be relied on as evidence by the nonmoving party.”7
                                                 A
       The district court granted summary judgment in favor of Luker and
Brewer because they did not participate in the use of force against Valenti.
Williams does not challenge this ruling on appeal, thereby waiving his claims
against those defendants.8
                                                 B
       Williams contends that Valenti violated his Eighth Amendment rights by
using excessive force to restrain him. To state a valid Eighth Amendment
excessive force claim, Williams “must show that force was applied not ‘in a good
faith effort to maintain or restore discipline,’ but rather that the force
complained of was administered ‘maliciously and sadistically to cause harm.’”9
We look to five nonexclusive factors to determine this: (1) the need for the
application of force; (2) the extent of the injury suffered; (3) the relationship
between this need and the force claimed to have been used; (4) the threat
reasonably perceived by the officials; and (5) efforts made to temper the severity
of a use of force.10
       In granting summary judgment in favor of Valenti, the district court relied
on an incident report contained in the prison’s use of force documentation.

       6
           Id. (internal quotation marks, citation, and brackets omitted).
       7
           Id. (citing Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc)).
       8
         United States v. Thibodeaux, 211 F.3d 910, 912 (5th Cir. 2000) (“It has long been the
rule in this circuit that any issues not briefed on appeal are waived.”).
       9
       Rankin v. Klevenhagen, 5 F.3d 103, 107 (5th Cir. 1993) (quoting Hudson v. McMillian,
503 U.S. 1, 7 (1992)).
       10
            Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998).

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Williams did not challenge the competency of the incident report, submitted
under a business records affidavit, in the district court or in this court.11 That
report stated, in relevant part:
       On June 28, 2007 at approximately 0410 Hours a Use of Force
       occurred in the corridor in front of the Infirmary entry door between
       Sgt. Anthony Valenti and Offender Williams . . . . Prior to the Use
       of Force, Offender Williams . . . was medicated at pill window then
       ordered several times to leave after receiving the appropriate
       medication. Offender Williams refused to leave the pill window
       arguing loudly with Medical Staff that he did not receive his
       medication. After several orders to leave the pill window, Offender
       Williams walked from the pill window to the Infirmary without
       authorization to do so. Sgt. Anthony Valenti was advised of what
       transpired [as he entered] the Infirmary to escort Offender Williams
       out of the Infirmary. Offender Williams continued to argue and
       yell[] that he wanted his medication. Sgt. Valenti ordered the
       offender to exit the Infirmary and Offender Williams complied. Due
       to Offender Williams[’s] continuous . . . yelling[,] Sgt. Valenti
       ordered the offender to place his hand[s] behind his back and said
       Offender refused to comply. Sgt. Valenti grasped for the offenders’
       [sic] right arm at which time Offender Williams pulled away. Sgt.
       Valenti immediately grabbed Offender Williams’s shirt pushing him
       down to restrain [him] on the floor. Sgt. Valenti attempted to place
       Offender Williams[’s] hands behind his back but was unable to do
       so due to the offender resisting. Sgt. Valenti struggled with
       Offender Williams at which time the sergeant believed his life to be
       in danger. Therefore, the sergeant proceeded to hit the offender
       with a close[d] fist (2) two times in [the] right side of [his] face. Sgt.
       Valenti was still unable to restrain the offender’s hands behind his
       back. Sgt. Valenti then hit the offender (4) four more times in the
       facial area.




       11
          See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646, 650 n.3 (5th Cir.
1992) (“We note that the admissibility of evidence on a motion for summary judgment is
subject to the same standards and rules that govern admissibility of evidence at trial. None
of the parties objected to or challenged the admissibility of the Donagheys’ proffer of the letters
and an investigation report accompanying their memorandum, and accordingly, we find that
any objections to them are waived.” (internal citations omitted)).

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                                  No. 10-20141

The report indicates that, with the help of another prison guard, Valenti was
able to restrain Williams shortly after hitting Williams with his fist.
      Williams submitted no summary judgment evidence other than his sworn
complaint, which does not raise an issue of fact concerning whether the use of
force was necessary. In the complaint, Williams states:
      Sgt Valenti came to me after I came out of the infirmary talking
      about my seizure medication. He told me to face the wall. I did and
      put my hands behind my back. I ask him why [sic]. He pull me off
      the wall and start beat me [sic]. I beg him to stop he never stop
      [sic]. He step on my head and nobody try to stop him [sic].
At most, there is an issue of fact concerning whether Williams faced the wall and
placed his hands behind his back. Williams’s complaint does not contradict
other critical aspects of the incident report. Williams does not contest that he
entered the Infirmary without authorization, was belligerent, and resisted
Valenti’s efforts to restrain him. Specifically, Williams does not dispute that he
pulled away from Valenti when Valenti grasped his arm, or that Valenti initially
only pushed him to the floor using Williams’s shirt. Williams also does not
dispute the very fact that made the further use of force necessary—that after
Valenti pushed him to the floor, he continued to resist restraint. With these
aspects of the altercation uncontradicted, a rational trier of fact could not
determine that the use of force was unnecessary. On this record, we conclude
that there is no evidence that Valenti used force maliciously and sadistically for
the purpose of causing harm. Accordingly, Williams’s Eighth Amendment
excessive force claim fails.
      We note that the record contains statements by two prisoners, Bruce
Crayton and James Ray, who witnessed the altercation between Williams and
Valenti. The statements, like the use of force incident report, are contained in
documentation submitted to the district court by the defendants. They were not
submitted by Williams. The district court does not appear to have considered


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                                       No. 10-20141

these statements by the two prisoners. Had they been competent summary
judgment evidence, a matter we do not decide, and had they been considered, the
statements may have demonstrated an issue of fact concerning the necessity of
applying force. We have said, however, that “Rule 56 does not impose upon the
district court a duty to sift through the record in search of evidence to support
a party’s opposition to summary judgment.”12 Instead, the “party opposing
summary judgment is required to identify specific evidence in the record and to
articulate the precise manner in which that evidence supports his or her
claim.”13 Thus, “‘[w]hen evidence exists in the summary judgment record but the
nonmovant fails even to refer to it in the response to the motion for summary
judgment, that evidence is not properly before the district court.’”14
       As the district court noted, Williams submitted no formal response to the
defendants’ motion for summary judgment. Nevertheless, the district court
considered several of the numerous letters Williams submitted to the court that
appear to address issues pertaining to that motion. We have reviewed those
letters, and the only passage possibly relevant to the prisoner witness
statements is the following:
          Now I see why they do not want me to see the D.V.D. I read the
       motion for a Summary Judgment. The D.V.D. is very important
       Capt. Siringi yelled stop three time the video camera [sic]. Whats
       [sic] it a real mistake or a [sic] excuse stop seeing the beaten [sic].
           Please all statements from the employees are the same. They
       have to because the death of Cox on this unit. Why only two


       12
          Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003) (internal quotation marks and
citation omitted).
       13
          Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); see also Nissho-
Iwai Am. Corp. v. Kline, 845 F.2d 1300, 1307 (5th Cir. 1988) (noting as incorrect the
proposition “that the entire record in the case must be searched and found bereft of a genuine
issue of material fact before summary judgment may be properly entered”).
       14
         Smith ex rel. Estate of Smith v. United States, 391 F.3d 621, 625 (5th Cir. 2004)
(quoting Malacara, 353 F.3d at 405).

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                                      No. 10-20141

       inmates to 8 employees? One thing for sure those two inmates are
       right and 8 is very wrong [sic]. You have to go through and see my
       right eye is mess up [sic]. I which [sic] you could had [sic] seen the
       knots on my head. Valenti said he did hit me in the head. Why
       medical said no injury? [sic] Valenti did not have cuff you got to
       read through those statement [sic].
          A jury trial should be call for [sic]. Brewer did hit me right in
       front of a nurse. Lt. Jackson lied. I did talk to him and Capt.
       Siringi at the same time about Valenti.

We are cognizant that pro se briefs are to be interpreted liberally and afforded
“all reasonable inferences which can be drawn from them.”15                   We cannot
reasonably infer, however, that the quoted passage apprised the district court
of the existence or contents of Crayton’s and Ray’s statements. Given our clear
rule that the district court is not required to search the record in support of
evidence supporting a party’s opposition to summary judgment, we will not
reverse that court because it did not do so in this case.
       The evidence properly before the district court demonstrates that Valenti
did not violate Williams’s constitutional rights. Valenti is therefore entitled to
qualified immunity on Williams’s excessive force claim.
                                            III
       Williams also contends that he was denied adequate medical care. He did
not advance this claim in his district court complaint and did not address it in
his notice of appeal, which references only the altercation with Valenti. Rather,
Williams asserted his medical-care claim for the first time in a motion filed in
the district court in January 2010, long after the defendants had filed their




       15
         Tex. Comptroller of Pub. Accounts v. Liuzza (In re Tex. Pig Stands, Inc.), 610 F.3d
937, 941 n.4 (5th Cir. 2010).

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                                       No. 10-20141

motion for summary judgment. The district court did not address this tardy
claim, and we decline to address it for the first time on appeal.16
       We likewise do not rule on Williams’s claim that his medical records were
improperly sealed. Williams has provided no argument that the medical records
were improperly sealed, and we emphasize that the sealing of a record does not
preclude us from examining its contents.
       Finally, Williams contends that a lawyer should have been appointed to
represent him pursuant to § 504 of the Rehabilitation Act and the Americans
with Disabilities Act. We conclude that Williams has waived this claim due to
inadequate briefing, as we have recognized that when an appellant fails to
provide “the reasons he deserves the requested relief with citation to the
authorities, statutes and parts of the record relied on,” that failure constitutes
waiver.17
                                     *        *       *
       The judgment of the district court is AFFIRMED.
       WIENER, Circuit Judge, concurs in the judgment only.




       16
          Nunez v. Allstate Ins. Co., 604 F.3d 840, 846 (5th Cir. 2010) (“An argument not
raised before the district court cannot be asserted for the first time on appeal.” (internal
quotation marks and citation omitted)); see also C. A. May Marine Supply Co. v. Brunswick
Corp., 649 F.2d 1049, 1056 (5th Cir. July 1981) (per curiam) (“Where the appellant notices the
appeal of a specified judgment only or a part thereof, however, this court has no jurisdiction
to review other judgments or issues which are not expressly referred to and which are not
impliedly intended for appeal.”).
       17
          Turner v. Quarterman, 481 F.3d 292, 295 n.1 (5th Cir. 2007) (quoting Hughes v.
Dretke, 412 F.3d 582, 597 (5th Cir. 2005)); see also FED. R. APP. P. 28(a)(9)(A) (requiring an
appellant’s argument section to contain her “contentions and the reasons for them, with
citations to the authorities and parts of the record on which the appellant relies”).

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