     Case: 11-20092     Document: 00512017339         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. 11-20092                        Lyle W. Cayce
                                                                                Clerk

ARCADE JOSEPH COMEAUX, JR.,

                                                  Plaintiff-Appellant,
v.

DARRELL SUTTON; MARK BISCAMP; ROBERT JENKINS, JR.; AUSTIN
MCCOMB; BRADLEY HUTCHINSON,

                                                  Defendants-Appellees.



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:03-cv-02555


Before GARZA, DENNIS, and HIGGINSON, Circuit Judges.
PER CURIAM:*
        Arcade Joseph Comeaux, Jr., Texas prisoner #841331, appeals the district
court’s dismissal with prejudice of his 42 U.S.C. § 1983 suit, entered after the
district court granted the defendants’ summary judgment motion based on its
conclusion that the defendants were entitled to qualified immunity. Comeaux
alleges that the defendants violated his constitutional rights when (1)
defendants Darrell Sutton, Mark Biscamp, and Robert Jenkins, Jr. allegedly


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20092

used excessive force against him during a February 11, 2002 transfer of
Comeaux from his cell to a van to transport him to a court hearing, and (2)
defendants Bradley Hutchinson, Austin McComb, and Timothy Simmons failed
to protect him from this excessive force. Because the district court did not
construe all facts and inferences in the light most favorable to the non-moving
party, and because genuine issues of material fact remain, we reverse the
district court’s ruling.
                                        I.
      We review a grant of summary judgment de novo and apply the same
standard as the district court. Dillion v. Rogers, 596 F.3d 260, 266 (5th Cir.
2010). Under Federal Rule of Civil Procedure 56(a), “[t]he court shall grant
summary judgment 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.”
The trial court may not weigh evidence or make credibility determinations when
considering a motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). As we explained in Reaves v. Brokerage Co., 336 F.3d
410 (5th Cir. 2003):
      The standard for summary judgment mirrors that for judgment as
      a matter of law. Thus, the court must review all of the evidence in
      the record, but make no credibility determinations or weigh any
      evidence. In reviewing all the evidence, the court must disregard all
      evidence favorable to the moving party that the jury is not required
      to believe, and should give credence to the evidence favoring the
      nonmoving party as well as evidence supporting the moving party
      that is uncontradicted and unimpeached. The nonmoving party,
      however, cannot satisfy his summary judgment burden with
      conclusional allegations, unsubstantiated assertions, or only a
      scintilla of evidence.
Id. at 412–13 (internal citations omitted). Said another way, “[w]e construe all
facts and inferences in the light most favorable to the nonmoving party when




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                                  No. 11-20092

reviewing grants of motions for summary judgment.” Murray v. Earle, 405 F.3d
278, 284 (5th Cir. 2005) (internal citations omitted).
      The defendants argue that they are entitled to qualified immunity. When
a defendant in a § 1983 case “pleads qualified immunity and shows he is a
governmental official whose position involves the exercise of discretion, the
plaintiff then has the burden to rebut this defense by establishing that the
official’s allegedly wrongful conduct violated clearly established law.” Hampton
v. Oktibbeha Cnty. Sheriff Dep’t, 480 F.3d 358, 363 (5th Cir. 2007) (quoting
Pierce v. Smith, 117 F.3d 866, 871–72 (5th Cir. 1997)) (internal quotation marks
omitted). To decide whether defendants are entitled to qualified immunity, we
make two inquiries: (1) we ask whether the facts alleged or shown, taken in the
light most favorable to the party asserting the injury, show that the defendant’s
conduct violated a constitutional right, and (2) we ask whether the right violated
was clearly established at the time of the defendant’s alleged conduct. Pearson
v. Callahan, 555 U.S. 223, 232 (2009)) (citing Saucier v. Katz, 533 U.S. 194, 201
(2001), overruled in part by Pearson, 555 U.S. at 236) (other citations omitted).
While it is often appropriate to answer these two questions sequentially, courts
are vested with “sound discretion in deciding which of the two prongs of the
qualified immunity analysis should be addressed first in light of the
circumstances in the particular case at hand.” Id. at 236.
      When evaluating whether a defendant’s conduct violated a constitutional
right under the aforementioned test in the context of an excessive force claim,
the Supreme Court has held that the “‘core judicial inquiry’” is “not whether a
certain quantum of injury was sustained, but rather ‘whether force was applied
in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.’” Wilkins v. Gaddy, 130 S. Ct. 1175, 1178 (2010)
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)) (other citations omitted).
“An inmate who is gratuitously beaten by guards does not lose his ability to

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pursue an excessive force claim merely because he has the good fortune to escape
without serious injury.” Id. at 1178–79. To determine whether the use of force
was constitutionally excessive, we evaluate the five factors identified in Hudson
v. McMillian: (1) “the extent of injury suffered by an inmate[,]” (2) “the need for
application of force,” (3) “the relationship between that 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.’” 503 U.S.
at 7 (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)); see also Rankin v.
Klevenhagen, 5 F.3d 103, 107–08 (5th Cir. 1993) (reviewing the Hudson factors
in the light most favorable to the nonmoving party and determining that
summary judgment was properly denied because factual issues remained
concerning multiple Hudson factors).
                                             II.
       The first time this case was before us on appeal, we held that Comeaux
was injured as the result of a “‘major use of force’” and that a genuine issue of
material fact existed regarding the need and amount of forced used. Comeaux v.
Sutton, 271 F. App’x 468, 468 (5th Cir. 2008). We held that the district court
erred in dismissing Comeaux’s excessive-use-of-force and failure-to-protect
claims because Comeaux’s injuries could not be considered legally de minimis
based on the physical nature of the injury.
       On remand, the district court applied the Hudson factors to the expanded
record,1 but when conducting this analysis, the district court failed to view the
facts and make inferences in the manner most favorable to Comeaux, the non-

       1
         The district court correctly determined that an exception to the law of the case
doctrine applies because the evidence in the current record is substantially different than the
evidence in the record before remand. See United States v. Becerra, 155 F.3d 740, 752–53 (5th
Cir. 1998), abrogated, on other grounds, by United States v. Booker, 543 U.S. 220 (2005).
Extensive evidence was added to the record after the March 28, 2008 decision of this court,
including Comeaux’s deposition, the deposition of John M. Patrick, and the defendants’
depositions.

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movant, as required by well-settled law.        If the facts and inferences are
construed in the light most favorable to Comeaux—however troubling and
unfavorable his “extensive litigation history,” and record of extreme prison
violence, and despite the considerable evidence adduced by defendants that his
story might be disbelieved—Supreme Court law requires us to find that
summary judgment is inappropriate because we are unable to say that no
reasonable jury could conclude that excessive force was used by the defendants.
A. The First Hudson Factor
      The district court analyzed the first Hudson factor, the extent of the
injuries suffered, quoting from and consistent with our unpublished decision in
Barnes v. Johnson, 204 F. App’x 377 (5th Cir. 2006). In Barnes, we explained
that, “[e]ven if the medical records show that [the defendant] could prove only
that he suffered a bruised lip, this is not a per se de minimis injury.” Id. at 379.
Similarly, as noted by the district court, even though the medical report shows
that Comeaux suffered an abrasion on his elbow and leg, this is not per se de
minimis injury. As we stated in 2006, “[t]his Court has never directly held that
injuries must reach beyond some arbitrary threshold to satisfy an excessive force
claim . . . .” Brown v. Lippard, 472 F.3d 384, 386 (5th Cir. 2006). That logic
became controlling law five years later in the Supreme Court’s decision in
Wilkins, 130 S. Ct. at 1178–80. We agree that this factor does support the
conclusion that the force used here was not excessive as a matter of law.
B. The Second Hudson Factor
      Applying the second Hudson factor, the need for force, the district court
mistakenly credited the deposition testimony of the defendants to establish the
facts of the case, and specifically provocation and resistance by Comeaux. By
contrast, in one sentence, the district court acknowledged but did not accept
nonmovant Comeaux’s extensive denial that he resisted the defendants during
the incident. The district court based its disregard of Comeaux’s affidavit and

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deposition testimony on the Supreme Court’s decision in Scott v. Harris, 550
U.S. 372 (2007). In Scott, the Supreme Court considered what a “genuine”
dispute of fact is under Rule 56, and held that, “[w]hen 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 summary judgment.” Id. The Supreme
Court explained that whereas a plaintiff’s version of the facts is usually adopted
in qualified immunity cases, the facts in Scott had “an added wrinkle[,]” namely,
a videotape which captured all relevant aspects of the events in question so
much so that the plaintiff’s version of events could be called impossible. Id. at
378–380. Even in that context, where the plaintiff’s “version of events is so
utterly discredited” that Rule 56 does not bind courts to believe him, the
Supreme Court noted that, “[t]here [were] no allegations or indications that th[e]
videotape was doctored or altered in any way, nor any contention that what it
depict[ed] differ[ed] from what actually happened.” Id. at 378, 380.
      In the instant case, the videotape does not include much, or perhaps any,
of the events leading to the excessive force claim. The videotape begins with
Comeaux already on the floor completely undressed. It therefore cannot resolve
key facts pertaining to any need for force, notably (1) Comeaux in the elevator
where he alleges that he was threatened by the defendants concerning his past
litigation against prison officials; (2) the alleged first use of force against
Comeaux after he exited the elevator; (3) any resistance denied by Comeaux
before being placed on the floor; (4) the undisputed use of force when removing
Comeaux from his wheelchair and placing, putting, or throwing him onto the
concrete floor; and (5) the method of removal of Comeaux’s clothing on the floor.
      Eight photographs of Comeaux were also taken but, like the videotape, all
were taken after the incident.          Therefore, these photographs do not
depict—hence cannot “utterly discredit” Comeaux’s denials of—any provocation

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or need for force. The black-and-white photocopies of the photographs we are
able to view in the record on appeal depict Comeaux with most of his body
covered.2 He is wearing pants and a short-sleeved shirt, with his right pants leg
raised to his knee in four of the photographs. It is impossible to see if Comeaux
has injuries to the back of his body or under his clothing. There is no close-up
of his face. The photographs, like the videotape, therefore, do not chronologically
offer any proof as to need for and circumstance of force.
      Our application of Scott is consistent with our unpublished decision’s
discussion of Scott in Sanchez v. Fraley, 376 F. App’x 449, 453–55 (5th Cir. 2010)
(explaining that the narrow exception of Scott might apply “where a videotape
blatantly and demonstrably contradict[s] [a plaintiff’s] version of events”), as
well as the reasoning of other circuits. As the Fourth Circuit explained:
      Of course, Scott does not abrogate the proper summary judgment
      analysis, which in qualified immunity cases “usually means
      adopting . . . the plaintiff’s version of the facts.” Thus, Scott does not
      hold that courts should reject a plaintiff’s account on summary
      judgment whenever documentary evidence, such as a video, offers
      some support for a governmental officer’s version of events. Rather,
      Scott merely holds that when documentary evidence “blatantly
      contradict[s]” a plaintiff’s account “so that no reasonable jury could
      believe it,” a court should not credit the plaintiff’s version on
      summary judgment. As such, Scott simply reinforces the
      unremarkable principle that “[a]t the summary judgment stage,
      facts must be viewed in the light most favorable to the nonmoving
      party” when “there is a ‘genuine’ dispute as to those facts.”
Witt v. W. Va. State Police, Troop 2, 633 F.3d 272, 276-77 (4th Cir. 2011)
(emphasis omitted) (citations omitted). The Fourth Circuit found it significant
that the video in Witt “fail[ed] to capture seven important seconds of the
incident, about which the parties’ accounts decidedly differ.” Id. at 277; see also
United States v. Hughes, 606 F.3d 311, 319–320 (6th Cir. 2010); York v. City of


      2
          The record on appeal does not contain the original eight photographs.

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Las Cruses, 523 F.3d 1205, 1210–11 (10th Cir. 2008); Blaylock v. City of Phila.,
504 F.3d 405, 414 (3d Cir. 2007). In the instant case, as noted above, the
majority of the disputed incident was not videotaped.
      Consequently, applying the plain language of Scott, as well as the logic of
subsequent caselaw, we cannot affirm that “Comeaux’s version of the events is
also wholly inconsistent with the contemporaneous photographs of his injuries
– two superficial scrapes – and the medical evidence about those injuries,” hence
we cannot affirm the district court’s holding that “[t]he second Hudson factor
weighs in favor of the defendants.”
C. The Third Hudson Factor
      The district court similarly erred its application of the third Hudson factor,
the relationship between the need for and the amount of force used. The district
court credited the defendants’ testimony and that of one of the nurses who
worked at the prison that Comeaux was “jerking, thrashing, and swinging his
arms violently”; that the officers merely placed Comeaux on the floor; and that
the officers did so because they decided it was the most efficient way to minimize
the threat posed by Comeaux.          Using only this evidence offered by the
defendants, the district court determined that, “the application of force was not
clearly excessive to the need to restore discipline and maintain order.”
Constrastingly, the district court dismissed Comeaux’s testimony that he was
“physically passive in his refusal to shower or change and his objection to efforts
to cut off his shirt,” by citing as “wholly inconsistent” the “contemporaneous
photographs” and “contemporaneous videotape.” For the reason previously
noted, however, no photographic or videotape evidence documents whether or
not Comeaux was physically passive at the outset. It depicts him only after
what our court previously termed “major force” was applied and Comeaux had
been stripped. We must again conclude that the district court erred when it
failed to “view the facts and draw reasonable inferences ‘in the light most

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favorable to the party opposing the [summary judgment] motion.’” Scott, 550
U.S. at 378 (alteration in original) (quoting United States v. Diebold, Inc., 369
U.S. 654, 655 (1962) (per curiam)).               As the district court itself detailed,
Comeaux’s affidavit and deposition describe how defendants Sutton, Biscamp,
and Jenkins beat him3 and how defendants Hutchinson, McComb, and Simmons
allegedly watched the violence without intervening. Comeaux denies that he
resisted the officers during the incident. He claims he was threatened for filing
lawsuits and grievances against prison officials, never disobeyed an order that
it was possible for him to comply with,4 and was beaten twice after telling the
defendants that he would report his treatment to his lawyer and the judge.
Finding the same misapplication of Scott, we cannot affirm the district court’s
determination that the third Hudson factor warrants summary judgment in the
defendants’ favor.
D. The Fourth Hudson Factor
       Likewise, we are compelled to reject the district court’s application of the
fourth Hudson factor, the threat that would be reasonably perceived by
responsible officials.      Rather than construing all facts and inferences in
Comeaux’s favor, the district court again credited the defendants’ testimony and
other defense-proffered “summary judgment evidence” as the basis for its
conclusion. The district court accepted the defendants’ assertion that Comeaux
was a dangerous inmate who “was taken to the floor because he was thrashing
around and swinging his arms, resisting Biscamp’s efforts to cut off the clothes.”


       3
         Comeaux alleges that his injuries–albeit not discernible in the photographic and
videotape evidence–included cuts and bruises on his wrist, a friction burn on his face, a stab
wound in his elbow, and lacerations, that were not recorded in the medical report because, he
claims, of a cursory examination by Nurse MacCartney.
       4
        Comeaux explains that he was ordered to take off his shirt and that though he tried
to comply with the order, he could not fully take off his shirt because the handcuffs made it
impossible to get his shirt past his wrists.

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Even if we accept that the defendants were aware of Comeaux’s history of
aggression and violence, and that he might be feigning confinement to a
wheelchair, a genuine issue of material fact remains. The district court decided
that, “[w]hen Comeaux refused to comply with the shower and clothing change
and when he physically resisted the effort to cut away his shirt with blunt-tipped
medical scissors, the officers reasonably perceived his swinging arms (with the
heavy metal restraints) to threaten their safety.” This improperly decides an
issue of credibility, namely, the disputed genuine question of material fact about
whether Comeaux physically resisted. A summary judgment motion is not
meant to be a trial based on the affidavits provided by the parties. Anderson,
477 U.S. at 255. Constrained by settled law to construe all facts and inferences
in Comeaux’s favor, we must assume at this stage that the threat perceived by
responsible officials was the threat involved in every wheelchair transport of
handcuffed Comeaux.5
E. The Fifth Hudson Factor
       The district court relied solely on the defendants’ deposition testimony to
determine, finally, that the fifth Hudson factor was decisive “as a matter of law”
in the defendants’ favor.        Whereas the district court claimed that it was
undisputed that “the defendants used force in a good-faith effort to maintain
discipline, not maliciously and sadistically for the purpose of causing harm,” this
is what Comeaux extensively does dispute. Comeaux offers evidence through his
affidavits and deposition testimony that he did not resist the officers and that
excessive force was used against him twice in retaliation for his litigious
behavior, namely, that excessive force was used after he was warned by the
defendants about filing lawsuits against prison officials and after Comeaux said


       5
        The district court’s citation to evidence of Comeaux’s general dangerousness does not
resolve whether there is a genuine issue of material fact concerning the officers’ reasonable
perception of a threat posed by him on February 21, 2002.

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he would tell the judge and his lawyer about his treatment. He also stated that
he did not resist the defendants, leaving the defendants no reason to use force
“in a good-faith effort to maintain discipline, not maliciously and sadistically for
the purpose of causing harm.”6
                                              IV.
       The district court’s dismissal of Comeaux’s failure-to-protect claim was
based in part on its conclusion that the defendants did not use excessive force.
Although the district court held that the officers had no reasonable opportunity
to intervene, we must view all facts and inferences in favor of Comeaux.
Accepting Comeaux’s claims (1) that both uses of force occurred; (2) that multiple
blows were administered during the first use of force; (3) that Captain
Hutchinson wanted to get a camera between the two alleged uses of force but
was told not to; and (4) that the second use of force was protracted in time (and
coincided with time not captured on videotape), a reasonable jury could
determine that the officers had enough time to intervene.
       Therefore, the district court erred in granting summary judgment for
defendants on their failure-to-protect claim.
                                               V.
       In sum, there continue to be genuinely disputed material facts as to the
need for and the amount of force used by the defendants. The grant of summary
judgment is REVERSED and this case is REMANDED to the district court.




       6
         The district court extensively quotes from our unpublished decision in Tillis v. Garcia,
99 F.3d 1135 (5th Cir. 1996) (unpublished), to support its grant of summary judgment. In
Tillis, however, the case was tried before a jury whereafter it was undisputed that the plaintiff
admitted to engaging in “provocative conduct” toward the officers, was videotaped threatening
the officers after force was used, admitted that he destroyed property before force was used
a second time, and refused a medical evaluation afterwards. Id. at 1135. Thus, Tillis supports
the Supreme Court’s requirement that these stark fact disagreements cannot be resolved
through summary judgment.

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