     Case: 11-40237     Document: 00511888000         Page: 1     Date Filed: 06/15/2012




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

                                                                            FILED
                                                                           June 15, 2012

                                       No. 11-40237                        Lyle W. Cayce
                                                                                Clerk

DEWAYNE ANDERSON,

                                                  Plaintiff-Appellant
v.

J. B. MCCALEB, Chief, Longview Police Department; BRANT E. SMITH,
Officer, Longview Police Department; LANIE L. SMITH, Officer, Longview
Police Department,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:09-CV-282


Before SMITH, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Dewayne Anderson brought a Section 1983 suit against two Texas police
officers and their supervisor, alleging that excessive force was used. The
defendants prevailed on summary judgment on the basis that they used
reasonable force to detain a fleeing suspect and that medical records
contradicted allegations of injuries suffered during the arrest. We REVERSE.


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                FACTUAL AND PROCEDURAL BACKGROUND
       Anderson filed a civil rights complaint under 42 U.S.C. § 1983 against
officers Lanie Smith and Brant Smith, alleging they each used excessive force
when arresting him.1 After the incident, Anderson pled guilty to evading arrest.
That conviction does not bar this claim that excessive force was used to make the
arrest. Bush v. Strain, 513 F.3d 492, 498 & n.13 (5th Cir. 2008).
       In this Section 1983 suit, all parties consented to proceed before a
magistrate judge. The judge held a hearing authorized by Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985). The following is Anderson’s testimony. On
December 17, 2008, he was driving his car when Officers Lanie Smith and Brant
Smith attempted to stop him. The officers were uniformed and in marked police
cars. Instead of stopping, Anderson drove to the back of an apartment complex,
got out of his car, and ran while the officers chased him. He ran into a backyard,
but because he did not want to run into the woods at the edge of the yard, he
turned around and held out his hands in an attempt to surrender. Anderson was
holding an iPod. Officer Lanie Smith shot him with a taser and he fell to the
ground. Officer Brant Smith got on top of him and hit him with a closed fist.
Officer Lanie Smith continued to use the taser, shocking him five or six times.
After Anderson was handcuffed, Officer Brant Smith slammed him back on the
ground. That caused a taser probe to come out of his chest.
       Anderson testified that he did not resist the officers’ attempt to arrest him.
He further claimed they never asked him to get on the ground. He did not know
whether Officer Lanie Smith knew the object he was holding was an iPod. He


       1
        Anderson also sued J. B. McCaleb, the officer who supervised the other officers. The
claims against McCaleb were dismissed, and there is no appeal of that ruling.

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claimed he suffered a sprained knee and a fracture of his right hand or wrist.
Medical records discussed at the hearing showed that Anderson suffered a
“boxer’s fracture of the fifth metacarpal.” On cross-examination, Anderson
denied telling the technicians in the ambulance that his neck hurt because of a
fall or that he was kicked. He explained that the medical staff at the hospital
did not ask him about his injuries. Anderson denied telling a doctor that the
fracture was an old injury, that his injuries were not caused by another person,
or anything at all about what happened when he was arrested.
      Officers Lanie Smith and Brant Smith both submitted affidavits about the
events. In their account, Anderson ignored repeated commands to get down on
the ground. In his hands was an object that resembled a weapon. Officer Lanie
Smith, fearing for his safety, shot Anderson with a taser.        Anderson fell
backwards. The taser appeared to have limited effect, and Anderson attempted
to get up. Officer Lanie Smith shocked Anderson with the taser twice more.
After Anderson continued to ignore commands to lie down on his stomach,
Officer Brant Smith placed his foot on Anderson’s chest to hold him down. Both
officers denied hitting or kicking Anderson or throwing him to the ground.
      While handcuffing Anderson, the officers learned that he had been
carrying not a weapon but an iPod. Officer Lanie Smith’s affidavit stated that
one of the taser’s two probes was embedded in Anderson’s thick jacket. The
emergency medical services report shows that the second taser probe was in
Anderson’s abdomen.
      The medical center’s records show that Anderson suffered a metacarpal
fracture, a shoulder contusion, and an acute cervical strain. The records state
that he “sustained neck injury, contusion, pain with movement, tenderness,


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LEFT SHOULDER AND RIGHT WRIST,” and that he had an “injury or acute
deformity” and “pain with movement, stiffness, tenderness” in his neck and an
“injury or acute deformity, abrasion, contusion, pain” in his “MS/extremity.” The
records also note that he had an abrasion and contusion on his right wrist. The
medical personnel diagnosed Anderson with “abrasion, closed head injury,
contusion, fracture, laceration, multiple trauma, sprain, strain,” and that he
suffered a neck sprain. Anderson’s head was, however, “normal.” Additionally,
the records indicate that Anderson suffered from mild degenerative disc disease
in his back and an arthritic joint in his neck. The records note that “[a]t worst
the symptoms were severe, earlier today, in the emergency department the
symptoms were unchanged.” A splint was put on Anderson’s right arm.
      As to the cause of the injuries, the emergency medical service report noted
that Anderson complained that his “neck hur[t] from w[h]ere [he] fell.” The
medical center records reported that Anderson’s injuries were the result of a
“[f]all from standing position,” that Anderson “denie[d] threats or abuse” and
“injuries caused by another,” and that Anderson explained he was running away
from police, was shot with a taser, fell to the ground and continued to move
during the arrest. Officer Lanie Smith explained that Anderson reported to him
that the fracture was an old injury.
      All parties filed motions for summary judgment. Along with his motion,
Anderson submitted a “Patient Care Report,” which appears to be the report of
an emergency medical services technician showing that Anderson complained
of neck and shoulder pain “from ‘w[h]ere the police officer kicked me in the
head.’” At the hearing, Anderson denied saying that he was kicked. The report




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also showed that Anderson had pain in his neck and upper back, but no
abnormalities anywhere else, including his head, arms, and hands.
      The magistrate judge granted summary judgment in favor of the
defendants on the basis of qualified immunity. He determined that the force the
officers used to subdue Anderson was reasonable given that Anderson had fled,
and when he stopped he turned around and put his hands up while holding an
unidentified object. As for Anderson’s claim that he suffered injuries after being
beaten, the magistrate judge determined that Anderson’s assertions were
contradicted by the medical records.        Accordingly, the magistrate judge
reasoned, Anderson’s allegations of injury and his unsupported assertions that
medical staff fabricated their report amounted to no more than a scintilla of
evidence, insufficient to defeat the motion for summary judgment. Anderson
filed a timely notice of appeal.
                                   DISCUSSION
      Anderson argues that the evidence when viewed in the light most
favorable to him established that the officers used excessive force and injured his
finger, neck, and shoulder. Thus, he contends, there is a dispute as to whether
the officers’ actions violated clearly established law.       He also faults the
magistrate judge for accepting the defendants’ version of events over his and not
resolving all factual disputes in his favor. The defendants argue that the
undisputed evidence shows that Anderson ran from the police, had an unknown
object in his hands, and the police used reasonable force to subdue him.
      We review de novo a district court’s grant of summary judgment. Bellard
v. Gautreaux, 675 F.3d 454, 460 (5th Cir. 2012). Summary judgment is properly
granted when “the movant shows that there is no genuine dispute as to any


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material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). In order to determine if the defendants are entitled to qualified
immunity we must determine if they violated Anderson’s constitutional rights
in a manner that was clearly established as a constitutional violation. Reichle
v. Howards, 132 S. Ct. 2088, 2012 WL 1969351, at *4 (2012)
      We review claims of the use of excessive force by making an inquiry into
objective reasonableness. Elizondo v. Green, 671 F.3d 506, 510 (5th Cir. 2012);
United States v. Brugman, 364 F.3d 613, 616 (5th Cir. 2004). The inquiry is
guided by “the facts and circumstances confronting” the officers, “including the
severity of the crime at issue, whether the suspect poses an immediate threat to
the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” Brugman, 364 F.3d at 616 (quoting
Graham v. Connor, 490 U.S. 386, 396-97 (1989)). To prove his excessive force
claim, Anderson “must show: (1) an injury (2) which resulted from the use of
force that was clearly excessive to the need and (3) the excessiveness of which
was objectively unreasonable.” Rockwell v. Brown, 664 F.3d 985, 991 (5th Cir.
2011) (quotation marks and citation omitted).
      The magistrate judge relied on Anderson’s medical records to determine
that there were no genuine issues as to his claimed injuries because his
testimony conflicted with his medical records. The basis for the magistrate
judge’s ruling was that the medical records “starkly contradict[ed] his claims”
that he suffered any injuries.
      “When opposing parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could believe it, a court
should not adopt that version of the facts for purposes of ruling on a motion for


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summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). That conclusion
arose in a case in which a videotape presented evidence so contradictory to the
plaintiff’s story that no court should have accepted the plaintiff’s version on
summary judgment.         Id. at 378.        The videotape in Scott depicted a
“Hollywood-style car chase,” whereas the plaintiff’s viewpoint was that he
“remained in control of his vehicle, slowed for turns and intersections, and
typically used his indicators for turns.” Id. at 379-80.
      Accordingly, a court should reject a “plaintiff’s description of the facts
where the record discredits that description but should instead consider ‘the
facts in the light depicted by the videotape.’” Carnaby v. City of Houston, 636
F.3d 183, 187 (5th Cir. 2011) (quoting Scott, 550 U.S. at 381).
      The Scott situation requires that a plaintiff’s factual claims be untenable
based on something else in the record. We find the medical records do not
blatantly contradict Anderson’s testimony. True, the medical records call into
question some of Anderson’s assertions – for example, the evidence shows that
he suffered no bruises or cuts to his face despite his allegation that Officer Brant
Smith repeatedly punched him with a closed fist. There is a much larger story
here, though, and large portions of it are not untenable. The records confirm his
assertion that he suffered back and neck pain as well as a broken bone in his
hand. They also show that he suffered a neck sprain as well as, among other
things, “abrasion, closed head injury, [and] contusion.”
      The magistrate judge acknowledged that Anderson suffered a fracture but
concluded that the medical records showed Anderson admitted at the time that
the fracture was an old injury. The medical records, however, are silent as to
the cause of the fracture and do not suggest that Anderson mentioned that it


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was an old injury. Indeed, they show that Anderson had an abrasion and
contusion on his right wrist, which is arguably consistent with Anderson’s
account that the fracture was related to his arrest. Though Officer Lanie Smith
asserted in his affidavit that Anderson reported suffering the injury earlier,
Anderson denied that he made this statement. At this stage and without
evidence that blatantly contradicts Anderson’s account, the magistrate judge
was required to take Anderson’s version of events as true. See Lytle v. Bexar
Cnty., Tex., 560 F.3d 404, 409 (5th Cir. 2009).
      Qualified immunity provides that “government officials performing
discretionary functions generally are shielded from liability for civil damages
insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.” Estate
of Davis ex rel. McCully v. City of N. Richland Hills, 406 F.3d 375, 380 (5th Cir.
2005) (quotation marks and footnote omitted).        To defeat the defendants’
assertion of qualified immunity, Anderson must “satisfy a two-prong test[:] First,
he must claim that the defendants committed a constitutional violation under
current law. Second, he must claim that the defendants’ actions were objectively
unreasonable in light of the law that was clearly established at the time of the
actions complained of.” Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.
2009) (quotation marks and citations omitted).
      We conclude that the magistrate judge erred in rejecting Anderson’s
account of his injuries, which leaves some contested evidence of significant
injury to support the factual assertions of excessive force. We have held that a
police officer defendant was not entitled to qualified immunity where, under the
plaintiff’s version of events, the officer slammed her face into the side of a car


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once she had been handcuffed and subdued after having resisted arrest. Bush,
513 F.3d at 501-02. Similarly, Anderson testified that Officer Lanie Smith
shocked him with the taser repeatedly while he was on the ground, no longer
resisting arrest, and being beaten by Officer Brant Smith. Officer Brant Smith
eventually handcuffed him and then allegedly slammed him into the ground.
Anderson testified that he suffered a broken hand and a sprained knee and the
medical evidence supports his claims that he fractured a finger and also
establishes that he suffered other injuries including a neck sprain and had
severe pain in his neck and shoulder.
      Anderson satisfied the first part of the test to defeat qualified immunity
by showing sufficient facts to make an issue that significant injuries did occur
and that they resulted from unconstitutional acts by the officers.
      Anderson’s evidence also validly responded to the second part of the
qualified immunity test.     When Anderson was arrested, it was clearly
established that a police officer’s right to make an arrest “necessarily carries
with it the right to use some degree of physical coercion,” but the degree of
acceptable force turns on the severity of the crime, whether the suspect posed a
threat to the officer’s safety, and whether the suspect was resisting or
attempting to flee. Saucier v. Katz, 533 U.S. 194, 205, 208 (2001), overruled on
other grounds by Pearson v. Callahan, 555 U.S. 223 (2009). A reasonable use of
force for purposes of the Fourth Amendment “is ‘not capable of precise definition
or mechanical application.’” Bush, 513 F.3d at 502 (quoting Graham, 490 U.S.
at 396). Still, Officer Lanie Smith should have known that he could not continue




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to shock Anderson with the taser after he was no longer resisting arrest.2 Officer
Brant Smith should have known that he could not beat Anderson after he
stopped resisting arrest or slam Anderson to the ground after he was
handcuffed. Id. at 501-02. The evidence may well show that neither officer in
fact did what Anderson claims. Summary judgment is inappropriate to resolve
such disputes.
       Anderson also contends that the transcript of the Spears hearing
incorrectly omitted his testimony that he put his hands “in the air” in an attempt
to surrender to the officers before he was shocked with the taser. He did not
raise this issue in the district court, so this court’s review is for plain error only.
Norton v. Dimazana, 122 F.3d 286, 289 (5th Cir. 1997). The magistrate judge
noted at the hearing and in his report that Anderson testified he put his hands
up when he turned around to face Officer Lanie Smith. Additionally, it does not
matter precisely where Anderson’s hands were. It is undisputed that he turned
around with an object in his hand after fleeing from police, justifying Officer
Lanie Smith’s initial use of the taser. Accordingly, Anderson has not shown that
any error violated his substantial rights. See id. at 289.
       The medical records do not blatantly contradict Anderson’s account of the
police officers’ conduct. The defendants are not entitled to qualified immunity
when accepting Anderson’s recitation of the facts. Consequently, summary
judgment was not appropriate in this case. REVERSED and REMANDED.


       2
         The magistrate judge – after concluding the medical records contradicted Anderson’s
testimony – determined that Anderson had not shown the use of a taser was unreasonable.
The magistrate judge reached this conclusion only by considering the use of the taser when
the defendants first approached Anderson while he was holding the object they could not
identify. Based on our conclusion that Anderson’s testimony is competent summary judgment
evidence, the use of a taser in the manner alleged in this case remains at issue on remand.

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