                      UNITED STATES COURT OF APPEALS

                          FOR THE FIFTH CIRCUIT



                                 No. 01-10640
                               Summary Calendar


                           RAY CHARLES TANNER,

                                                      Plaintiff-Appellant,


                                    VERSUS


      ROBERT HARRIS, Sheriff, Kaufman County; BILLY VALENTINE,

                                                      Defendants-Appellees.




            Appeal from the United States District Court
                 For the Northern District of Texas
                        (USDC No. 3:99-CV-2935-R)
                            December 12, 2001
Before DeMOSS, PARKER and DENNIS, Circuit Judges
              *
PER CURIAM:

      Ray   Charles   Tanner    (“Tanner”),   Texas    prisoner   #   462289,

appeals the summary-judgment dismissal of his pro se 42 U.S.C. §

1983 civil rights suit for damages he contends he suffered when

Kaufman County, Texas, Deputy Sheriff Billy Valentine (“Valentine”)


  *
   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opinion should not be published and is not precedent except under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.

                                      1
allegedly used excessive force during his arrest.

     Sergeant Billy Valentine (“Valentine”), Kaufman County, Texas,

Sheriff’s Department, responded to an alarm in the clubhouse of the

Creekview Golf Course in Kaufman County on the evening of December

14, 1999.     In the company of other law enforcement officers, he

observed that the glass had been entirely broken out of a first-

floor window.    One of the other officers had seen someone inside.

They proceeded through the window and apprehended Tanner, who had

hidden himself in a small locker after he had eaten some potato

chips, stolen some money and saw the officers looking through the

window.    Valentine pulled Tanner out of the locker, placed him on

the floor and handcuffed him.          The officers were unsure whether

there were any other intruders in the clubhouse and elected to

escort Tanner out of the building as expeditiously as possible.        In

so doing, they exited       through the same window instead of a

deadbolted door.      Valentine released his grip on Tanner, who

stepped over the 2 foot high window sill and placed one foot on the

other side.     Valentine then pushed Tanner through the window.

Tanner    characterizes   the   push    as   “violent”   while   Valentine

describes it as a “gentle” means of effectuating Tanner’s movement

through the window.   Tanner lost his balance and fell to the porch.

Valentine assisted him up and the party left the area of the

building. Tanner declined medical treatment after his fall and did

not complain of any injury.       A medical examination conducted in

jail revealed no injury and Tanner was treated with ibuprofen.         He

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now claims to have suffered back and leg injuries leaving him with

uncontrollable muscle spasms which he contends were caused by the

alleged excessive force applied by Valentine’s push.   His lawsuit

asserted that Valentine violated 42 U.S.C. § 1983 and Tanner’s

rights under the Fourth, Sixth, Eighth and Fourteenth Amendments to

the U.S. Constitution.     Sheriff Harris, originally named as a

defendant, has since been dismissed from the claim.    The parties

agreed to proceed before a magistrate judge pursuant to 28 U.S.C.

§ 636(c).   Valentine moved for summary judgment.

     The magistrate judge ruled that Tanner’s claim properly fell

under the Fourth Amendment as a matter occurring during arrest, and

dismissed the Sixth, Eighth and Fourteenth Amendment claims.    He

then granted summary judgment, finding that the force applied was

neither excessive to the need nor objectively unreasonable.

     On appeal, Tanner complains that the magistrate judge did not

rule on the motions he appended to his objection to Valentine's

summary judgment motion.    He asserts that the magistrate judge

should not have granted summary judgment to Valentine because the

magistrate judge found that Tanner had established the first

element of an excessive-force claim.   Although his third argument

is difficult to construe, he appears to contend that Valentine is

not entitled to qualified immunity from his excessive-force claim,

and that he did not pose any threat to the officers and was not

resisting arrest or attempting to flee.   He reasserts his argument

that Valentine used unreasonable and excessive force in pushing him

                                 3
through the broken clubhouse window.

       This court reviews a grant of summary judgment de novo.

Guillory v. Domtar Indus., Inc., 95 F.3d 1320, 1326 (5th Cir.

1996).    Summary judgment is appropriate when, considering all of

the allegations in the pleadings, depositions, admissions, answers

to interrogatories, and affidavits, and drawing inferences in the

light most favorable to the nonmoving party, there is no genuine

issue of material fact and the moving party is entitled to judgment

as a matter of law.   Little v. Liquid Air Corp., 37 F.3d 1069, 1075

(5th Cir. 1994)(en banc); Newell v. Oxford Management, Inc., 912

F.2d 793, 795 (5th Cir. 1990).            There is no genuine issue of

material fact if, taking the record as a whole, a rational trier of

fact could not find for the nonmoving party.            Newell, 912 F.2d at

795.   If the moving party meets the initial burden of showing that

there is no genuine issue, the burden shifts to the nonmoving party

to   produce   evidence   or   set   forth   specific   facts   showing   the

existence of a genuine issue for trial.         Celotex Corp. v. Catrett,

477 U.S. 317, 323-24 (1986); Fed. R. Civ. P. 56(e).              A complete

failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.              Id.

at 322-23.      The nonmovant cannot satisfy his summary-judgment

burden with conclusory allegations, unsubstantiated assertions, or

only a scintilla of evidence.        Little, 37 F.3d at 1075.

       To state a claim under § 1983, a plaintiff must allege that


                                      4
some person has deprived him of a federal right and that the person

who has deprived him of that right acted under color of state law.

42 U.S.C. § 1983; Gomez v. Toledo, 446 U.S. 635, 640 (1980);

Randolph v. Cervantes, 130 F.3d 727, 730 (5th Cir. 1997).                    A claim

that a law enforcement officer used excessive force in the course

of a seizure is analyzed under the Fourth Amendment.                     Graham v.

Connor, 490 U.S. 386, 395 (1989).              An excessive use of force claim

requires a plaintiff to prove 1) an injury, which 2) resulted

directly     and   solely   from     the   use   of     force   that   was   clearly

excessive to the need, and the excessiveness of which was 3)

objectively unreasonable.          Ikerd v. Blair, 101 F.3d 430, 433-34

(5th Cir. 1996). Whether the force used was objectively reasonable

is determined by balancing “the amount of force used against the

need   for    that   force.”       Id.     at    434.      Further,    determining

“reasonableness”      under    the    Fourth      Amendment     requires     careful

attention to the facts and circumstances of each particular case,

including the severity of the crime at issue, whether the suspect

poses an immediate threat to the officers or others, and whether he

was actively resisting arrest or attempting to evade arrest by

flight.      Graham, 490 U.S. at 396.

       The reasonableness of a particular use of force is not judged

by considering the law enforcement officer’s actual state of mind

or subjective motivations. United States v. Rideau, 969 F.2d 1572,

1574 (5th Cir. 1992)(en banc).             Rather, reasonableness is judged


                                           5
from the perspective of a reasonable officer on the scene, rather

than with the 20/20 vision of hindsight.                       Graham, 490 U.S. at 396.

“[T]he question is whether the officers’ actions are 'objectively

reasonable' in light of the facts and circumstances confronting

them, without regard to their underlying intent or motivation.”

Id.    at   397.       The   answer       to       this   question        should     include

consideration of the fact that police officers are often forced to

make   split-second      judgments        in       circumstances      that     are      tense,

uncertain, and rapidly evolving about the amount of force that is

necessary     in   a   particular     situation.               Id.   at   396-97.         This

standard gives ample room for mistaken judgments by protecting all

but the plainly incompetent or those who knowingly violate the law.

Hunter v. Bryant, 502 U.S. 224, 229 (1991).

       The magistrate judge did not err in determining that Tanner

had failed to carry his burden to show that the force used was

clearly     excessive    and   objectively           unreasonable.           Viewing      the

circumstances objectively, Valentine and Moore were faced with

getting themselves and a burglary suspect out of a dark, locked,

burglarized building, not knowing whether an accomplice, perhaps

armed, was concealed in the building.                     Although it is undisputed

that Tanner was not attempting to flee, it is also undisputed that

he    concealed    himself     in     a    locker         in    an   attempt       to    avoid

apprehension.      Under these circumstances, it was not unreasonable

for Valentine to act with haste in getting Tanner, himself, and


                                               6
Moore out of the building, making a judgment to use the already-

opened   window   as   the   quickest   means   of    egress,   nor   was    it

unreasonable that he pushed Valentine in his haste to get him out,

such force not being excessive in relation to the need.                     See

Graham, 490 U.S. at 396-97.      Although later facts would show that

Valentine could have made a leisurely exit safely (after confirming

that there were no other suspects in the building), Valentine's

actions should not be judged with the "20/20 vision of hindsight."

Id. at 396.   Accordingly, Tanner's excessive-force claim fails.

     The uncontroverted evidence established that even if Valentine

used force by pushing Tanner to effectuate his exit from the

building burglarized by Tanner, such force was neither clearly

excessive to the need nor objectively unreasonable. See Ikerd, 101

F.3d at 433-34.    Thus, Tanner’s excessive-force claim fails.

     Tanner’s remaining arguments are unavailing.               The asserted

discrepancies in his deposition testimony were minor and did not

affect the magistrate judge’s decision.              Tanner’s motions were

improper, and were made after the deadline for completion of

discovery and filing of dispositive motions.          Because the facts do

not support Tanner’s excessive-force claim, it is unnecessary to

address Valentine’s qualified immunity.

     AFFIRMED.




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