     Case: 12-30424     Document: 00512016450         Page: 1     Date Filed: 10/11/2012




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

                                                                            FILED
                                                                         October 11, 2012
                                     No. 12-30424
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MONDRELL WILSON,

                                                  Plaintiff-Appellant

v.

LUKE RHEAMS, Captain; N. BURL CAIN, Warden; LESLIE DUPONT,
Assistant Warden of Security,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:11-CV-289


Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Mondrell Wilson, Louisiana prisoner # 378506, seeks leave to proceed in
forma pauperis (IFP) on appeal. By moving for IFP, Wilson is challenging the
district court’s certification that IFP status should not be granted on appeal
because his appeal from the dismissal of his 42 U.S.C. § 1983 suit is not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997).




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 12-30424

      Wilson argues that the district court erred in dismissing his complaint for
failure to state a claim.     He contends that the district court applied an
unreasonable standard to his excessive force claim. He asserts that without
provocation, Captain Rheams choked him to near unconsciousness and flung him
to the ground out of his wheelchair. He argues that the district court erred in
its opinion that an excessive force claim must be proven by a certain amount of
actual physical injuries.
      We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6). In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205
(5th Cir.2007); FED. R. CIV. PROC. 12(b)(6). We must accept all well-pleaded facts
as true and must view them in the light most favorable to the plaintiff. In re
Katrina, 495 F.3d at 205.
      When prison officials stand accused of using excessive force in violation of
the Eighth Amendment, “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 v. McMillian, 503 U.S. 1, 6-7 (1992). In
Hudson, the Supreme Court held that “the use of excessive physical force against
a prisoner may constitute cruel and unusual punishment when the inmate does
not suffer serious injury,” rejecting this court’s earlier requirement of
“significant injury” to establish a claim of excessive force. Hudson, 503 U.S. at
4. The Supreme Court has also rejected a requirement that a prisoner show
more than a “de minimis” injury to establish a claim of excessive force because
that approach is at odds with its direction in Hudson to “decide excessive force
claims based on the nature of the force rather than the extent of the injury.”
Wilkins v. Gaddy, 130 S. Ct. 1175, 1177 (2010).
      In Williams v. Bramer, 180 F.3d 699, 703-04, clarified on reh’g, 186 F.3d
633, 634 (5th Cir. 1999), an individual detained by police officers brought an
excessive force claim against an officer who allegedly choked him twice, once in

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                                  No. 12-30424

the course of a search of the plaintiff’s mouth and once shortly thereafter in
response to his complaining about the first choking. The plaintiff’s alleged
injuries from each choking were identical: “fleeting dizziness, temporary loss of
breath and coughing.” Id. at 704. Evaluating each instance separately, we
determined that the injuries resulting from the first choking were not
constitutionally cognizable because they occurred during a search of the
plaintiff’s mouth for drugs. Id. With respect to the second choking, however, the
identical injuries were actionable, because the second choking “was motivated
entirely by malice” and because the officer was not “legitimately exercising force
in the performance of his duties as an officer.” Id.
      Wilson has alleged that with no provocation, Rheams maliciously applied
unnecessary force to him by choking him, resulting in near unconsciousness, and
by flinging him out of his wheelchair to the floor. For purposes of Rule 12(b)(6),
accepting Wilson’s allegations as true, these allegations are sufficient to state a
claim of excessive use of force based on the “nature of the force rather than the
extent of the injury.” Wilkins, 130 S. Ct. at 1177; Williams, 180 F.3d at 703-04.
      The district court erred in dismissing the complaint for failure to state a
claim of excessive use of force. Wilson’s motion for leave to proceed IFP on
appeal is GRANTED. Because further briefing is not required, the district
court’s judgment is VACATED and the case is REMANDED for further
proceedings.




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