     Case: 11-10143     Document: 00511705338         Page: 1     Date Filed: 12/22/2011




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

                                                                            FILED
                                                                        December 22, 2011
                                     No. 11-10143
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

JAY ANTHONY NOTTINGHAM,

                                                  Plaintiff-Appellant

v.

JOEL FINSTERWALD, Sheriff of Wheeler County; JULIAN TORREZ, Deputy
Sheriff of Wheeler County; JON BURRELL, Deputy Sheriff of Wheeler County;
FNU STOKES, Deputy Sheriff of Wheeler County; CARRIE GAINES, Jail
Administrator of Wheeler County; WHEELER COUNTY, TEXAS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:09-CV-250


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Jay Anthony Nottingham, Texas prisoner # 1490726, appeals the district
court’s summary judgment dismissal of his 42 U.S.C. § 1983 complaint against
Joel Finsterwald, Sheriff of Wheeler County, Texas; Julian Torrez, Jon Burrell,
and FNU Stokes, Deputy Sheriffs of Wheeler County; Carrie Gaines, Jail
Administrator of Wheeler County; and Wheeler County, Texas. He claims that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-10143   Document: 00511705338     Page: 2   Date Filed: 12/22/2011

                                 No. 11-10143

Finsterwald, Torrez, Burrell, and Stokes used excessive force in executing an
arrest warrant and Gaines denied him medical treatment.
      Nottingham’s motion to supplement the record on appeal with evidence
that his former counsel failed to present to the district court is DENIED. See
Gibson v. Blackburn, 744 F.2d 403, 405 n.3 (5th Cir. 1984); United States v.
Smith, 493 F.2d 906, 907 & n.1 (5th Cir. 1974). We have considered only the
evidence that was before the district court in reviewing the summary judgment
ruling.
      Nottingham presented sufficient evidence to raise a genuine issue of
material fact regarding whether Finsterwald, Torrez, Burrell, and Stokes used
excessive force after he was handcuffed. His medical records documented black
eyes, a laceration on the neck, and soft tissue swelling on the left wrist and
hand, which are consistent with his declaration that the Defendants struck his
face, neck, and body. Nottingham declared that all of the defendants he named
in his excessive force claim caused his injuries by striking him after he was
handcuffed. Therefore, there was a genuine issue of material fact regarding
whether and which Defendants struck Nottingham and whether he received
these injuries before or after he was handcuffed. See Bush v. Strain, 513 F.3d
492, 501 (5th Cir. 2008). Under Nottingham’s version of events, the Defendants
would not have been justified in striking him after he was handcuffed as there
is no evidence that he resisted at that time. Therefore, there was a genuine
issue of material fact regarding whether the Defendants’ use of force of was
excessive and objectively unreasonable. See Peterson v. City of Fort Worth, 588
F.3d 838, 846-47 (5th Cir. 2009); Bush, 513 F.3d at 502; Williams v. Bramer, 180
F.3d 699, 704 (5th Cir. 1999). The district court erred by granting summary
judgment on the excessive force claim in favor of Finsterwald, Torrez, Burrell,
and Stokes.
      The Defendants’ argument that the judgment on the excessive force claim
may be affirmed for the alternative reason that Nottingham failed to allege a

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   Case: 11-10143   Document: 00511705338      Page: 3   Date Filed: 12/22/2011

                                  No. 11-10143

Fourth Amendment violation in his complaint is unavailing. Nottingham’s
allegation that the Defendants used excessive force in the course of an arrest
implicated the Fourth Amendment’s guarantee against unreasonable seizure
and thus stated a plausible claim for relief. See Graham v. Connor, 490 U.S.
386, 394-95 (1989); Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010).
      Nottingham has abandoned the excessive force claim against Wheeler
County. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748
(5th Cir. 1987).
      The district court did not err by granting summary judgment in favor of
Gaines on Nottingham’s claim for denial of medical treatment because
Nottingham presented no evidence that Gaines was aware of a substantial risk
of harm. See Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996) (en banc).
Because there was no underlying constitutional violation, the district court also
did not err by granting summary judgment in favor of Wheeler County on this
claim. See Becerra v. Asher, 105 F.3d 1042, 1048 (5th Cir. 1997).
      Nottingham’s complaint that his former counsel mishandled his case does
not constitute a basis upon which to invalidate the district court’s judgment
because the constitutional right to effective assistance of counsel does not apply
in a civil case. See Sanchez v. U.S. Postal Serv., 785 F.2d 1236, 1237 (5th Cir.
1986).
      The judgment of the district court is AFFIRMED IN PART and VACATED
IN PART, and the case is REMANDED for further proceedings.




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