                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                                                                 FILED
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           September 13, 2007
                               No. 07-10241               THOMAS K. KAHN
                                                                CLERK

                     D. C. Docket No. 05-00170-CV-1

NICKOLAS FELDER,

                                               Plaintiff-Appellant,

                                  versus

TONY HOWERTON, Warden,
DENNIS BROWN, Deputy Warden, et al.,

                                               Defendants-Appellees.



                Appeal from the United States District Court
                   for the Southern District of Georgia


                          (September 13, 2007)

                   ON PETITION FOR REHEARING

Before DUBINA, WILSON and PRYOR, Circuit Judges.

PER CURIAM:
      Pending before the court is the plaintiff-appellant’s petition for rehearing of

this court’s opinion affirming the district court’s grant of summary judgment in

favor of the defendants-appellees. After reviewing the petition and the record in

the case, we grant the petition for rehearing, vacate our previous opinion and

substitute this opinion in lieu thereof.

                                           I.

      At the time he filed his lawsuit, plaintiff-appellant Nickolas Felder

(“Felder”) was a prisoner at Augusta State Medical Prison (“ASMP”) in Augusta,

Georgia. Felder brought this action under 42 U.S.C. § 1983 (2006) alleging that

defendants-appellees Dewayne Riles (“Riles”), Marion Taylor (“Taylor”), and

Darryl Woodson (“Woodson”), who were during the relevant time period

corrections officers at ASMP, beat him in violation of rights protected by the

Eighth Amendment and Fourteenth Amendment of the United States Constitution.

Felder also alleged that defendants-appellees Tony Howerton (“Howerton”), at the

time Warden of ASMP, and Dennis Brown (“Brown”), at the time deputy Warden

of ASMP, were aware of systemic abusive practices at the prison and failed to take

any corrective action. Relying on the same facts, Felder included in his complaint

a torture claim under 18 U.S.C. § 2340, et seq., and state law tort claims.




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      The district court granted summary judgment in favor of all of the

defendants after concluding that Felder had failed to raise a genuine issue of

material fact and that the defendants were entitled to judgment as a matter of law.

We review the district court’s “grant of summary judgment de novo, drawing all

[reasonable] inferences in favor of the non-moving party.” Fin. Sec. Assurance,

Inc. v. Stephens, Inc., 450 F.3d 1257, 1269 (11th Cir. 2006). Summary judgment

is appropriate when “there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c).

      Having reviewed the record and the parties’ briefs on appeal, we conclude

that genuine issues of material facts exist that preclude summary judgment as to all

of the defendants with respect to Felder’s constitutional claim. Therefore, for the

reasons set forth below, we vacate the district court’s judgment in part and remand

for further proceedings.

                                          II.

      In opposition to the motion for summary judgment, Felder submitted his

sworn deposition and a sworn written statement that set out, under oath, his

version of the events that gave rise to the underlying litigation. At its essence, this

evidence, which we must believe, Hickson Corp. v. N. Crossarm Co., Inc., 357

F.3d 1256, 1260 (11th Cir. 2004), establishes that (1) Riles confronted and

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attacked Felder without provocation and for no legitimate law enforcement or

corrections reason; (2) Taylor and Woodson escorted Felder to the prison hospital

and, while en route inside an elevator, beat him about the torso without

provocation and for no legitimate law enforcement or corrections reason; and (3)

this sort of abusive treatment is systemic at ASMP. Although the defendants

present evidence that would allow a jury to conclude that Felder is lying about

every claim, and Felder’s evidence, which does not extend beyond his own

testimony, is weak, on a motion for summary judgment, “[i]t is not the court’s role

to weigh conflicting evidence or to make credibility determinations.” Mize v.

Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996). Felder’s sworn

testimony and sworn written statement, which includes testimony that Taylor and

Woodson told him in the elevator that all of the prisoners are subjected to the same

type of treatment, are sufficient to raise fact questions for a trier of fact on his §

1983 claims. See Perry v. Thompson, 786 F.2d 1093, 1093-95 (11th Cir. 1986).

Therefore, we conclude that the defendants are not entitled to summary judgment

on Felder’s § 1983 claims.

      With respect to Felder’s torture claim under 18 U.S.C. § 2340 et seq., the

district court concluded that Felder’s claim failed as a matter of law because the

relevant statute applies only to torture that occurs outside the United States.

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Felder contends this was error but fails to direct this court to any persuasive or

binding precedential authority for disregarding the plain language of the statute,

which assigns criminal liability to persons who commit or conspire to commit

torture “outside the United States.” 18 U.S.C. § 2340A(a) (2006). In short, Felder

fails to convince us that the statute on which he relies confers upon him additional

rights not already protected by the Constitution. Therefore, the defendants are

entitled to summary judgment on this claim.

      Finally, the district court declined to exercise supplemental jurisdiction over

Felder’s state law claims after having granted judgment against Felder on all of his

federal claims. Because we conclude that Felder’s federal constitutional claim

survives summary judgment, the basis for the district court’s decision not to

exercise supplemental jurisdiction over the state law claims is no longer valid.

Therefore, the district court’s decision not to exercise supplemental jurisdiction is

reversed.

      AFFIRMED in part, VACATED in part, REVERSED in part, and

REMANDED.




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