     Case: 13-30733      Document: 00512890861         Page: 1    Date Filed: 01/06/2015




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

                                                                                FILED
                                    No. 13-30733                          January 6, 2015
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
RAY J. BENOIT, JR.,

              Plaintiff - Appellee

v.

JEFF BORDELON, Deputy,

              Defendant - Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-1463


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
HIGGINSON, Circuit Judge:*
       Defendant-Appellant Jeff Bordelon appeals from a judgment entered
following a bench trial during which a magistrate judge found that Bordelon
used excessive force against Plaintiff-Appellee Ray Benoit, Jr. and awarded
Benoit $15,000 in compensatory damages. Finding no clear error, we AFFIRM.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                       FACTS AND PROCEEDINGS
      On May 24, 2012, Benoit filed a pro se complaint alleging a violation of
42 U.S.C. § 1983 stemming from an incident that occurred in the Lafourche
Parish Detention Center on February 2, 2012. Benoit, then an inmate, alleged
that he was called out of his cellblock by Deputy Neil Ledet and Deputy
Bordelon, and was handcuffed and shackled.         According to the complaint,
Bordelon then grabbed Benoit by the collar, threw Benoit to the floor, put his
knee to Benoit’s lower back, pulled Benoit’s head back, and choked Benoit.
Benoit asserted that, during the incident, he was handcuffed and shackled and
was not resisting. Benoit named as defendants Bordelon, Ledet (for not acting
to stop Bordelon), and Sheriff Craig Webre. Benoit’s complaint alleged back
pain following the incident.
      The parties consented to trial before a magistrate judge, and the bench
trial took place on June 12, 2013. Four witnesses testified. First, Benoit
testified that, at the time of the incident, he was in an open dorm. Thinking
Benoit had caused a disturbance, Ledet called out Benoit’s name, and Benoit
walked out the cell door and put his hands on the wall. Deputy Bordelon
grabbed Benoit’s wrist, and Ledet shackled Benoit’s hands and feet. Benoit
testified that, when he turned to walk down the hall as instructed by Ledet,
Bordelon yanked him down on the floor, turned him on his stomach, and
choked him until he passed out.      Benoit testified that he experienced no
injuries initially but began spitting up blood and had a swollen throat on the
day after the incident. Benoit also testified that, although his throat problems
lasted only a few days, he has had back problems since the incident. Benoit
was subsequently written up for inciting a riot.
      Second, Jeremy Schouest, who was an inmate in the same cell block as
Benoit, testified by telephone. Schouest testified that he saw Bordelon choke


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                                 No. 13-30733
Benoit and throw Benoit on the ground while Benoit was handcuffed and
shackled, and that Benoit convulsed and blacked out.
      Next, Ledet, who taught defense tactics to new cadets and officers, and
Bordelon, who certified other officers to become trainers in defense tactics,
testified that Benoit was ordered out of the cell block after creating a verbal
disturbance. Ledet and Bordelon testified that Benoit put his hands against
the wall as his legs were shackled. Benoit removed one of his hands from the
wall to talk to Ledet; Bordelon grabbed Benoit’s wrist and put it back on the
wall, and Ledet handcuffed Benoit. Ledet testified that Benoit was upset and
continued to resist after he was handcuffed and shackled. Further, Ledet and
Bordelon testified that Benoit cursed at Bordelon to let go of his hand.
According to Ledet and Bordelon, Benoit then lifted his elbow back towards
Bordelon, and Bordelon took Benoit to the ground.          Ledet testified that
Bordelon ordered Benoit to turn on his stomach and Bordelon flipped Benoit
over, but Benoit instead got to his knees. Ledet and Bordelon testified that
they were afraid Benoit would cause harm to the officers, so Bordelon used a
“tactical jaw restraint” to cause Benoit to lie flat on his stomach. After Benoit
was subdued, Ledet and Bordelon testified that Benoit appeared to have a
seizure, which both officers considered fake. Ledet and Bordelon testified that
they immediately escorted Benoit to the medical area, and Ledet testified that
Benoit did not complain of any injuries immediately after the incident.
      The magistrate judge also considered three exhibits: 1) a grievance filed
by Benoit regarding the incident; 2) grievances regarding medical attention
indicating that Benoit was diagnosed with a mild lumbar strain and mild
degenerative changes in his back; and 3) a jail incident report written by Ledet.
      After hearing the testimony and reviewing the evidence, the magistrate
judge found that Bordelon used excessive force in choking Benoit because
Benoit was handcuffed and shackled at the time and Bordelon had his hands
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on Benoit’s hands. 1        The magistrate judge awarded Benoit $15,000 as
compensatory damages for “general pain and suffering.”                   Bordelon timely
appealed.
                                     DISCUSSION
                                             I.
       This court generally reviews bench trial findings of fact, including a
court’s ruling on excessive use of force, for clear error. Baldwin v. Stalder, 137
F.3d 836, 839 (5th Cir. 1998). Appellant argues that the magistrate judge’s
factual findings should be subject to de novo review, a departure from the
general rule. “Findings of fact influenced by an erroneous view of the law are
entitled to no deference.” United States v. McFerrin, 570 F.3d 672, 675 (5th
Cir. 2009) (internal quotation marks and citation omitted). In this case, says
appellant, deference is not warranted because the magistrate judge failed to
consider all of the five factors announced by the Supreme Court to assist courts
in determining whether force was applied maliciously and sadistically. See
Hudson v. McMillian, 503 U.S. 1, 7 (1992). We disagree that the magistrate
judge’s factual findings were influenced by an erroneous view of the law.
       A § 1983 excessive force claim alleges a violation of constitutional rights.
See Baldwin, 137 F.3d at 839. 2 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, 503 U.S. at 7 (internal quotation


       1  The magistrate judge dismissed the claims against defendant Ledet because the
incident happened too quickly for Ledet to have had a realistic opportunity to intervene. The
magistrate judge dismissed the claim against Webre because a sheriff cannot be held
vicariously liable. Benoit has not appealed either of these judgments.
        2 At the time of the incident, Benoit appears to have already been prosecuted and

convicted. An excessive force claim brought by a convicted inmate lies under the Eighth
Amendment, while that of a pre-trial detainee lies under the Fourteenth Amendment. See
United States v. Daniels, 281 F.3d 168, 178–79 (5th Cir. 2002). An excessive force claim is
examined under the same standard regardless of the constitutional provision under which
the claim arises. Id. at 179.
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marks and citations omitted). An excessive force claim involves both objective
and subjective elements. See id. at 8. Five Hudson factors assist courts in
determining the core question of whether force was applied maliciously or
sadistically. The factors are: “1. the extent of the injury suffered; 2. the need
for the application of force; 3. the relationship between the need and the
amount of force used; 4. the threat reasonably perceived by the responsible
officials; and 5. any efforts made to temper the severity of a forceful response.”
Baldwin, 137 F.3d at 839 (citing Hudson v. McMillian, 962 F.2d 522, 523 (5th
Cir. 1992)).
      The magistrate judge correctly stated the law, as evidenced by her
statements and case citations, including page references to Hudson, on the
record. The magistrate judge then addressed most of the Hudson factors in
determining that Bordelon used excessive force. She explicitly noted that the
extent of the injury was a factor, and found that Benoit suffered more than a
de minimis physical injury. The magistrate judge also mentioned the “need for
force” factor and found that force was not needed because Benoit’s hands and
feet were shackled. She noted the degree of force exerted and concluded that
the force used was excessive to the threat at the time. She also noted the fourth
factor—the threat reasonably perceived by the officer—and concluded that
there was not “a threat from Mr. Benoit that was justified in taking him down
to the ground.” The magistrate judge did not note or explicitly consider the
fifth factor.
      The magistrate judge’s failure to explicitly discuss all five factors does
not constitute an erroneous view of the law that warrants de novo review of
her factual findings. This court has recognized that “these identified factors
are not exclusive; each case must be judged on its own facts.” Id. We have also
indicated that consideration of all five factors is not mandatory. See McCreary
v. Massey, 366 F. App’x 516, 518 (5th Cir. 2010) (“A court may consider” the
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                                 No. 13-30733
Hudson factors (emphasis added)). Further, in support of his standard of
review argument, appellant cites only unpublished cases that do not warrant
the conclusion that the magistrate judge erred by not explicitly considering all
five Hudson factors. In Martin v. Seal, 510 F. App’x 309, 312–13 (5th Cir.
2013), this court found that the district court erred when it considered only one
of five Hudson factors despite evidence relating to the other four factors. See
also Crawford v. Lynaugh, No. 93-2010, 1993 WL 391367, at *3 (5th Cir. Sept.
20, 1993) (finding that the district court abused its discretion when it
considered only one Hudson factor). In Jones v. Primrose, 176 F. App’x 518,
519–20 (5th Cir. 2006), this court found that a magistrate judge erred when it
did not analyze any of the Hudson factors. In contrast, here, the magistrate
judge acknowledged all but one of the Hudson factors, and considered most
factors in reaching her decision. We therefore review the magistrate judge’s
findings for clear error.
                                       II.
      While different factfinders could reach different conclusions, the
evidence is not such that the magistrate judge clearly erred in finding that
Bordelon used excessive force against Benoit. Although Bordelon argues that
there was a need to use force, the magistrate judge, hearing firsthand the
sharply disputed testimony, concluded that the fact that Benoit’s hands and
legs were shackled, along with Deputy Ledet’s testimony that Benoit was a
calm, non-violent inmate, made the use of force unnecessary. The magistrate
judge credited the testimony of Benoit and Schouest—who recounted that
Bordelon choked Benoit—over the testimony of Bordelon and Ledet, who said
that Bordelon used only a tactical jaw restraint.         This is a credibility
determination, and this court is not in a position to disturb credibility
determinations on appeal. See Williams v. Fab-Con, Inc., 990 F.2d 228, 232


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                                    No. 13-30733
(5th Cir. 1993) (noting this court’s “great deference toward [a lower court’s]
credibility determinations”). 3
                                          III.
      We also review for clear error the finding that Benoit’s injuries were
more than de minimis. “[T]o support an Eighth Amendment excessive force
claim a prisoner must have suffered from the excessive force a more than de
minimis physical injury, but there is no categorical requirement that the
physical injury be significant, serious, or more than minor.”               Gomez v.
Chandler, 163 F.3d 921, 924 (5th Cir. 1999). There was testimony that that
Benoit suffered two injuries: 1) a throat injury that lasted several days; and 2)
long-term back pain. The magistrate judge found that Benoit suffered a more
than de minimis injury.
      First, the throat injury. Appellant challenges this injury as too fleeting
to be more than de minimis and uncorroborated by medical records. The level
of injury required to “establish a constitutional violation is directly related to
the amount of force that is constitutionally permissible under the
circumstances.”     Williams v. Bramer, 180 F.3d 699, 704 (5th Cir. 1999)
(internal quotation marks and citation omitted).               Where, as here, the
magistrate judge finds the use of force unnecessary, the extent of injury needed
to exceed the de minimis level is low. See Payne v. Parnell, 246 F. App’x 884,
889 (5th Cir. 2007) (holding that the level of injury necessary to rise to a
constitutional violation is lower when no use of force was necessary). Here, the
magistrate judge found credible Benoit’s testimony that Bordelon choked him.
The magistrate judge also found that the use of force was not necessary
because Benoit was already shackled. In Williams v. Bramer, this court held


      3  The magistrate judge specifically acknowledged that Benoit and Schouest had not
spoken to each other or reviewed the facts before presenting consistent accounts of the
incident at trial.
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                                  No. 13-30733
that injuries resulting from a choking incident—fleeting dizziness, loss of
breath, and coughing—qualified as a cognizable injury despite their short
duration because the defendant was not legitimately exercising force in the
performance of his duties as an officer. 180 F.3d at 704. Here, Benoit testified
under oath that he spit up blood for three days, a longer period than that in
Williams. See Payne, 246 F. App’x at 888–89 (finding that application of a
cattle prod that caused an immediate sensation of pain and left a mark on the
inmate’s back was more than a de minimis injury). That Benoit did not provide
medical records of his throat injury is not fatal to his claim. See Beck v. Alford,
No. 93-4946, 1994 WL 442383, at *1 (5th Cir. July 27, 1994) (holding that there
is no “requirement that injury is necessarily de minimis unless there is some
objective medical evidence supporting its existence”); Grimon v. Collins, No.
94-40156, 1994 WL 398014, at *1 (5th Cir. July 18, 1994) (holding that
plaintiff’s sworn testimony was sufficient to create an issue of material fact
despite no supporting medical evidence).       Benoit’s post-incident grievance
report is consistent with his testimony, stating that he was spitting blood for
two days and that his throat was sore and bruised. It was not clearly erroneous
for the magistrate judge to find that Benoit suffered a throat injury.
      Second, the back injury.       Benoit testified that he never had back
problems until the incident occurred.       He testified that he needs to take
painkillers in order to get out of bed. At trial, over a year after the incident,
Benoit testified that he had a lump on his back, his back still hurt, and that he
could not get a job because of back pain. The administrative comments on
Benoit’s medical grievances corroborate Benoit’s back problems. They show a
diagnosis of a lumbar strain, though x-rays displayed only degenerative
changes. It was not clear error for the magistrate to determine that Benoit
suffered a back injury as a result of the incident and that the injury, which
persisted at least a year, was more than de minimis.
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                                      IV.
      Finally, Bordelon challenges the $15,000 damage award as excessive.
We will uphold compensatory damages awarded under § 1983 “unless the
amount is clearly erroneous or so gross or inadequate as to be contrary to right
reason.” Sockwell v. Phelps, 20 F.3d 187, 192 (5th Cir. 1994). “[A] trial court
has wide discretion in awarding damages.” Wheat v. United States, 860 F.2d
1256, 1259 (5th Cir. 1988). “Physical injury, pain and suffering, personal
humiliation, mental distress, and embarrassment” are all compensable under
§ 1983. Jones v. Conner, No. 99-60828, 200 WL 1468688, at *1 (5th Cir. Aug.
13, 2000). Based on the evidence, the damage award here was not clearly
erroneous or clearly excessive. See Johnson v. Hankins, 582 F. App’x 306 (5th
Cir. 2014) (affirming $15,000 in compensatory damages for excessive force);
Bauer v. Norris, 713 F.2d 408, 410, 414 (8th Cir. 1983) (upholding damage
award of $7,500 each to two plaintiffs whose arms were pulled and hands were
tightly handcuffed).
                               CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment below.




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