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

                                                                            FILED
                                                                          January 5, 2009

                                     No. 08-50501                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


MARK SHELTON

                                                  Plaintiff-Appellee
v.

RODNEY WISE and SHANNA ELAINE SHELLY

                                                  Defendants-Appellants



                   Appeal from the United States District Court
                        for the Western District of Texas
                               USDC No. 07-CV-63


Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       This is an interlocutory appeal from the district court’s denial of summary
judgment based on qualified immunity. The district court found that summary
judgment was not proper because genuine issues of material fact exist as to
whether the defendants used excessive force in arresting the plaintiff; for these
same reasons, we AFFIRM the district court’s ruling.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 08-50501

      This appeal arises out of a §1983 action filed by Plaintiff-Appellee Mark
Shelton (“Shelton”) against Defendants-Appellants Eric Wise (“Wise”) and
Shanna Elaine Shelly (“Shelly”) (collectively “Defendants”), who are both police
officers employed by the city of Georgetown, Texas. Shelton alleges that on or
about March 6, 2005, Defendants arrived at his residence to execute an arrest
warrant for traffic violations. Shelton’s roommate allowed Defendants into the
house and led them to Shelton’s bedroom, where Shelton was lying in bed
wearing only his underwear.
      Defendants entered Shelton’s bedroom and advised Shelton that they were
there to talk to him about a warrant. The specifics of what followed are in
dispute. Shelton’s roommate’s deposition indicated that Shelton stated that he
would clothe himself and then submit to arrest. Defendants acknowledge that
Shelton stated he would put his clothes on and go with the officers, but
Defendants also assert that Shelton became aggressive and began yelling
profanities. According to Defendants, Shelton then reached for a pile of clothing
near his bed. Defendant Wise instructed Shelton to stop, fearing that the pile
might contain a weapon. Shelton did not comply with Defendant Wise’s order
to stop, so Defendant Wise grabbed Shelton’s arm. Defendant Wise’s deposition
stated that Shelton made a fist threateningly and when Defendant Wise released
him he began to dig in the pile of clothing again, despite Wise’s repeated
commands to stop. Wise further testified that he grabbed Shelton’s wrist again
but that Shelton pulled away and swung at Wise several times. However
Shelton’s roommate’s deposition indicated that Shelton never made a fist or
swung at Wise; rather Shelton’s roommate stated that Shelton merely
repeatedly attempted to pick up his pants and Defendants repeatedly snatched
them away.
      Wise’s deposition testimony describes the situation escalating. Wise
testified that he warned Shelton to stop reaching for the clothes and put his


                                       2
                                  No. 08-50501

hands behind his back or be pepper-sprayed; however Shelton’s roommate
testified that Wise never gave these warnings. Wise then pepper-sprayed
Shelton a total of three times. Shelton continued reaching for his clothes, and
Wise warned Shelton that he would strike him with his baton if he did not stand
up. When Shelton did not comply, Wise struck him three or four times with the
baton, and Shelly placed a handcuff on Shelton’s left wrist. According to Wise’s
testimony, Shelton then pulled back his arm as if to strike Shelly, so Wise used
his baton several more times. Shelly’s testimony differed on this point; Shelly
states that Shelton merely made a fist.        However, according to Shelton’s
roommate, Shelton made no threatening movements at all, and Shelly merely
stood near Shelton holding his arms as Wise continued striking him with the
baton. All agree that soon thereafter Shelton complied with Defendants, put on
his clothes, and was handcuffed without further incident.
      Based on these events, Shelton filed a §1983 claim against Defendants,
alleging, inter alia, that Defendants violated his Fourth and Fourteenth
Amendment rights by using excessive force in arresting him. Defendants moved
for summary judgment based on qualified immunity, but the district court
denied Defendants’ motion, holding that whether the officers acted reasonably
was a disputed issue of material fact because of the conflicting testimony
describing the events of the arrest. Defendants then brought this interlocutory
appeal.
      Defendants argue that the district court erred in finding that factual
disputes existed regarding whether Defendants acted reasonably, claiming that
the district court improperly analyzed the situation from hindsight rather than
from the perspective of a reasonable police officer at the scene. However,
Defendants’ argument is unavailing. The district court applied the proper
standard in evaluating Defendants’ qualified immunity claim, asking first
whether “plaintiff’s allegations, if true, established a constitutional violation,”


                                        3
                                  No. 08-50501

and second whether Defendants’ actions violated “clearly established statutory
or constitutional rights of which a reasonable person would have known.” Hope
v. Pelzer, 536 U.S. 730, 736, 739 (2002). The district court, relying on Graham
v. Connor, 490 U.S. 386, 396 (1989), and Bush v. Strain, 513 F.3d 492, 501 (5th
Cir. 2008), held that whether or not Defendants used excessive force, in violation
of Shelton’s clearly established constitutional right of which a reasonable person
would have known, turned on whether Defendants’ actions were reasonable in
light of the circumstances of the arrest. Applying this standard, the district
court concluded that because Defendants and Shelton’s roommate offered
contradictory accounts of the incidents of the arrest there existed genuine issues
of material fact regarding the reasonableness of the force used against Shelton,
and, therefore, summary judgment could not be properly granted. This analysis
betrays no legal error and does not impermissibly rely on hindsight evidence;
rather, it merely recognizes that the evidence presents conflicting first-hand
accounts of the incident. Thus, for essentially the reasons stated by the district
court, the district court’s denial of summary judgment is AFFIRMED.




                                        4
