     Case: 13-40557      Document: 00512645305         Page: 1    Date Filed: 05/29/2014




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

                                    No. 13-40557                                  FILED
                                  Summary Calendar                            May 29, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
EDWIN GUS SCHNEIDER,

                                                 Plaintiff-Appellant

v.

JIM KAELIN; LIEUTENANT M. GOMEZ; CORRECTIONS OFFICER MARK
MARTINEZ;     CORRECTIONS   OFFICER   JOSHUA    SORENSEN;
CORRECTIONS OFFICER CHRIS HALLER,

                                                 Defendants-Appellees


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:12-CV-233


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Edwin Gus Schneider, Texas prisoner # 867105, appeals from the grant
of summary judgment for the defendants in his 42 U.S.C. § 1983 civil rights
action.    He contends that the district court erred by granting summary
judgment on his excessive force claim; that the district court made errors as to
evidence and discovery; and that the district court erred by denying his motion


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-40557

for appointment of counsel. Schneider also moves for appointment of counsel
on appeal; that motion is DENIED.
      We review the grant of a motion for summary judgment de novo. Xtreme
Lashes, LLC v. Xtended Beauty, Inc., 576 F.3d 221, 226 (5th Cir. 2009).
Summary judgment is appropriate if the record discloses “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” FED. R. CIV. P. 56(a). “[T]he party moving for summary
judgment must demonstrate the absence of a genuine issue of material fact,
but need not negate the elements of the nonmovant’s case.” Little v. Liquid Air
Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks
and citation omitted). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by” citing to the record or “showing that
the materials cited do not establish the absence or presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence to
support the fact.” FED. R. CIV. P. 56(c)(1).
      When assessing whether a defendant used excessive force in violation of
the Eighth Amendment’s prohibition against cruel and unusual punishment,
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, 7 (1992). To determine whether the
use of force was excessive, this court evaluates five nonexclusive factors: (1) the
extent of the injury suffered by the inmate; (2) the need for the application of
force; (3) the relationship between the need for force and the amount of force
used; (4) the threat reasonably perceived by the responsible officials; and
(5) efforts made to temper the severity of a forceful response. Id. (citation
omitted).




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      A “significant injury” is not a threshold requirement for establishing an
excessive-force claim. Wilkins v. Gaddy, 559 U.S. 34, 37-38 (2010); Hudson,
503 U.S. at 7. However, the lack of a substantial injury can be relevant to
whether excessive force was used; “the extent of injury suffered by an inmate
is one factor that may suggest whether the use of force could plausibly have
been thought necessary in a particular situation.” Hudson, 503 U.S. at 7
(citation and internal quotation marks omitted).          Also, the extent of an
inmate’s injury may provide some indication of the amount of force applied.
Wilkins, 559 U.S. at 37.
      Schneider’s action is based on the defendants’ use of force to take him to
the ground and restrain him after he became agitated in his cell. We have
reviewed a video of the incident, the sworn statements of Schneider and the
defendants, and the other evidence in the record. Schneider’s account of the
use of force differed significantly from the defendants’ account and from the
actions depicted on the video. The video showed Schneider kicking the door
hard several times. He became agitated as he spoke. He placed his hands
down at his side as the officers entered the cell. The officers appeared to be
manipulating his body in order to put his hands behind his back and place
restraints on him. One officer’s arm came close to Schneider’s head and neck,
but he pulled the arm down as if to yank Schneider’s hands in to place in order
for restraints to be placed on him.
      Although this court reviews the summary judgment evidence in the light
most favorable to the nonmoving party, greater weight is given “to the facts
evident from video recordings taken at the scene.” Carnaby v. City of Houston,
636 F.3d 183, 187 (5th Cir. 2011). Thus, “[a] court of appeals need not rely on
the plaintiff’s description of the facts where the record discredits that




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description but should instead consider the facts in the light depicted by the
videotape.” Id. (internal quotation marks and citation omitted).
      The video suggests that Schneider was in an extremely agitated state of
mind. The defendants’ affidavits indicate that they believed Schneider needed
to be made to calm down, and two of the defendants believed Schneider’s
behavior could become self-injurious.      The defendants were justified in
restraining Schneider, both to calm him and to protect him from himself. The
defendants pulled Schneider away from the wall so he would not hit his head,
and he resisted their attempts to place restraints on him, leading to a ground
struggle as the defendants attempted to place the restraints. The defendants
used as much force as was necessary to restrain Schneider. Moreover, the x-
ray report and clinic note in the record indicated that Schneider suffered no
neck damage from the incident, and that any persistent pain resulted from his
prior surgery and the insertion of hardware.        Moreover, Schneider was
examined shortly after he was restrained, and the record does not indicate that
any injuries were noted.
      The use of force against Schneider was justified, and the amount of force
used was proportionate to the need to restrain him without injuring him. The
record indicates that force was used in a good-faith attempt to restore order
and that there was no intent to harm Schneider. Hudson, 503 U.S. at 7.
      A district court has broad discretion over discovery in summary
judgment proceedings. Danos v. Union Carbide Corp., 541 F. App’x 464, 467
(5th Cir. 2013). A party may not rely on vague assertions about what further
discovery might reveal. Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 606
(5th Cir. 2001). The party “must show (1) why [he] needs additional discovery
and (2) how that discovery will create a genuine issue of material fact.” Id.




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      Schneider argues that his medical records from the state prison system
would show a diagnosis of a back injury. To the extent Schneider might have
wanted the county jail defendants to obtain his state prison medical records,
defense counsel likely is correct that the defendants could not obtain them for
him. Moreover, not “every malevolent touch by a prison guard gives rise to a
federal cause of action.” Hudson, 503 U.S. at 9. The justifiable, proportionate
use of force depicted in the video was not rendered excessive solely because it
might have exacerbated a preexisting condition. See Dunn v. Denk, 79 F.3d
401, 403 (5th Cir. 1996) (en banc) (noting that no recovery is available when a
use of force is reasonable, though a plaintiff may recover when a preexisting
condition is aggravated by the use of excessive force). To the extent Schneider
sought to show that his preexisting back condition was made worse, he could
not have presented a genuine issue of material fact, and the magistrate judge
need not have waited for Schneider’s prison medical records before granting
summary judgment. See Beattie, 254 F.3d at 606. The district court denied
Schneider’s request to rely on a prison medical record when it denied his Rule
59(e) motion. That denial was not an abuse of discretion. See Ross v. Marshall,
426 F.3d 745, 763 (5th Cir. 2005).
      As for the video, it was placed in the mail, to Schneider, by defense
counsel, who represented the defendants associated with the county jail.
According to Schneider, the state prison system banned the video CD as
contraband, and he wanted to have a friend view the video for him. He sought
an extension of the deadline to respond to the defendants’ summary judgment
motion, and the magistrate judge granted an extension. Schneider filed his
pleadings opposing the summary judgment motion within the time allowed.
Schneider thus was given the opportunity he requested to have the video
viewed before responding to the summary judgment motion. His suggestion



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that it was unfair to rely on the video when granting summary judgment is
unavailing.
      “A federal court has discretion to appoint counsel if doing so would
advance the proper administration of justice.” Ulmer v. Chancellor, 691 F.2d
209, 213 (5th Cir. 1982). The magistrate judge should have considered four
factors in ruling on a request for appointed counsel: “(1) the type and
complexity of the case; (2) whether [Schneider] is capable of adequately
presenting his case; (3) whether [Schneider] is in a position to investigate
adequately the case; and (4) whether the evidence will consist in large part of
conflicting testimony so as to require skill in the presentation of evidence and
in cross examination.” Id. (internal citations omitted).
      Schneider sought appointment of counsel to overcome limitations on his
ability to conduct legal research and to vindicate his rights generally.
However, he was able to litigate his garden-variety excessive force claim
through to summary judgment. The denial of the motion for appointment of
counsel was not an abuse of discretion. See id. at 213.
      Finally, Schneider seeks appointment of counsel on appeal. His case
does not present exceptional circumstances warranting the appointment of
counsel. See Cupit v. Jones, 835 F.2d 82, 86 (5th Cir. 1987).
      AFFIRMED. APPOINTMENT OF COUNSEL DENIED.




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