     Case: 10-20730     Document: 00511545141         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                            July 20, 2011
                                     No. 10-20730
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

ROBERT CHACON,

                                                  Plaintiff-Appellant

v.

DEPUTY MR. YORK; SERGEANT J. PATTON; SERGEANT Z. MOORE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3431


Before HIGGINBOTHAM, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
        Robert Chacon, Texas prisoner # 1550395, filed this 42 U.S.C. § 1983
action against Deputy York, Sergeant Patton, and Sergeant Moore, all Harris
County Sheriff’s Deputies working at the Harris County Jail, alleging an
incident of excessive use of force. The district court granted the defendants’
motion for summary judgment. The district court also denied Chacon’s motion
to vacate, alter or amend the judgment filed pursuant to Federal Rule of Civil
Procedure 59(e).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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      “This Court must examine the basis of its jurisdiction, on its own motion,
if necessary.” Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). A timely
“notice of appeal in a civil case is a jurisdictional requirement.” Bowles v.
Russell, 551 U.S. 205, 214 (2007). A notice of appeal in a civil case is required
to be filed within 30 days of the date of entry of the judgment. FED . R. APP.
P. 4(a). If a party has filed a timely Rule 59(e) motion within 28 days after the
entry of judgment, the time to appeal runs from the entry of the order denying
such motion. FED. R. APP. P. 4(a)(4)(A).
      The motion to vacate, alter, or amend the judgment was entered in the
record on August 30, 2010, but Chacon mailed it on August 25, 2010. Under the
prison mailbox rule, the motion is deemed to have been filed on the date it was
submitted to prison authorities for mailing. Houston v. Lack, 487 U.S. 266, 270-
76 (1988). Chacon’s motion to alter or amend the judgment was timely filed and
suspended the time to file a notice of appeal. In his notice of appeal entered in
the record on October 25, 2010, Chacon stated that he was appealing “from an
order to deny Petitioner’s Motion to Vacate Final Judgment, to Alter Judgment
and to Amend Final Judgment entered in this action on the 28th day of
September, 2010.” Although Chacon indicated that he intended to appeal the
order denying his motion to vacate or to alter and amend the judgment, because
the motion challenged the underlying judgment on the merits, the notice of
appeal may be considered a notice of appeal for the entire case. See Fletcher v.
Apfel, 210 F.3d 510, 511-12 (5th Cir. 2000); see also In re Blast Energy Services,
593 F.3d 418, 424 & n.3 (5th Cir. 2010) (reviewing underlying judgment where
intent to appeal entire case was implied and there was no prejudice because
parties briefed the issue which was the basis for both district court orders). The
issue of the propriety of summary judgment in this case was the subject of the
district court’s original opinion and the Rule 59(e) motion, it is apparent that
Chacon intended to appeal the merits of the underlying judgment, and the
appellees have not argued any prejudice in preparing their brief due to any

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confusion in Chacon’s statement in his notice of appeal.         Thus, we have
jurisdiction to review the underlying judgment.
      Chacon argues that the district court committed reversible error in
granting the motion for summary judgment. He contends that the district court
made a credibility determination, ignored genuine issues of material fact that
were in dispute, and did not properly view the facts in the light most favorable
to the non-moving party. He argues that the defendants were not entitled to
summary judgment because the parties presented two vastly different stories.
He notes that he and York agree that on January 8, 2008, York escorted him
from the clinic and returned him to the clinic with a laceration above the right
eye. He contends that what happened in the elevator is in dispute and that the
credibility determination is for a jury, not the judge. He identifies several
genuine issues of material fact, including whether Deputy York punched him in
the right eye with a closed fist, and whether he, Chacon, was causing a
disturbance in the elevator.
      Summary judgment is proper under Rule 56 “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Seacor Holdings, Inc. v. Commonwealth Ins. Co.,
635 F.3d 675, 680 (5th Cir. 2011). If the moving party meets the initial burden
of showing that there is no genuine dispute of material fact, the burden shifts to
the nonmoving party to produce evidence or designate specific facts showing the
existence of a genuine dispute for trial. Celotex Corp. v. Catrett, 477 U.S. 317,
322-24 (1986); FED. R. CIV. P. 56(c); see also Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir.1994) (en banc). The nonmoving party “cannot satisfy this
burden with conclusory allegations, unsubstantiated assertions, or only a
scintilla of evidence.” Freeman v. Texas Dep’t of Crim. Justice, 369 F.3d 854, 860
(5th Cir.2004). The trial court may not weigh the evidence or make credibility
determinations. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). This
court reviews a grant of summary judgment de novo. Freeman, 369 F.3d at 859.

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      By declaration made under penalty of perjury, Chacon asserted that
Deputy York used unnecessary force against him without provocation and that
he suffered a laceration above his right eyelid requiring at least one stitch and
a staple. Viewing these allegations in the light most favorable to Chacon,
Chacon has stated a claim for violation of a constitutional right under Hudson
v. McMillian, 503 U.S. 1 (1992). See Gomez v. Chandler, 163 F.3d 921, 923 (5th
Cir. 1999) (“[A] correctional officer’s use of excessive physical force against a
prisoner may in an appropriate setting constitute cruel and unusual punishment
of the prisoner, contrary to the Eighth Amendment.”). Analyzing the objective
reasonableness of York’s conduct, the parties offer conflicting evidence
concerning the circumstances surrounding their altercation. The resolution of
whether or not York used unreasonable force under the circumstances is
dependent on a fact-sensitive inquiry and credibility determination. Chacon is
correct that the district court improperly credited York’s version of the events.
York concedes in his motion for summary judgment that if Chacon’s allegations
were true, which York denies, the district court could find a genuine issue of
material fact with regard to Chacon’s alleged use of excessive force. Because it
is not possible to conclude as a matter of law, considering the evidence in the
light most favorable to Chacon, that York acted in an objectively reasonable
manner—which would entitle him to qualified immunity—the district court
erred in granting the motion for summary judgment for York on the excessive
force claim. See Gomez, 163 F.3d at 924-25 (5th Cir. 1999) (vacating and
remanding grant of summary judgment on excessive force claim where prisoner
alleged an unprovoked attack by prison guards without provocation while his
hands were handcuffed behind his back).
      Contrary to York’s argument, Chacon’s allegations, made under penalty
of perjury pursuant to 28 U.S.C. § 1746 in his declaration, were not conclusory
and were competent summary judgment evidence. See Gomez, 163 F.3d at 922.
His allegations in his more definite statement, also made under penalty of

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perjury and verified to be true and correct, are also competent summary
judgment evidence. See Hart v. Hairston, 343 F.3d 762, 765 (5th Cir. 2003)
(stating that allegations in verified complaint were competent summary
judgment evidence and created a genuine issue of material fact).
      As to Chacon’s excessive force claim against Deputy York, we VACATE the
summary judgment and REMAND that claim for further proceedings consistent
with this opinion.
      York and Patton argue that Chacon has abandoned his other claims by
failing to brief them. Appellees are correct that Chacon does not brief a medical
care claim on appeal, nor does he brief his claim against Patton for using undue
influence to make him sign the resolution of grievance form. Chacon’s brief is
based solely on his excessive use of force claim. Thus, Chacon has abandoned all
other claims, and their dismissal is AFFIRMED. See Gomez, 163 F.3d at 921.
      AFFIRMED in part; VACATED and REMANDED in part.




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