     Case: 10-11208     Document: 00511692154         Page: 1     Date Filed: 12/12/2011




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

                                                                            FILED
                                                                        December 12, 2011
                                     No. 10-11208
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHARLES MITCHELL,

                                                  Plaintiff-Appellee

v.

ROEL CERVANTES; JONATHAN DOMINGUEZ,

                                                  Defendants-Appellants


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:10-CV-30


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Appellants Roel Cervantes and Jonathan Dominguez appeal from the
order of the district court denying their motion for a grant of summary judgment
based on qualified immunity in this 42 U.S.C. § 1983 action brought by Charles
Mitchell, Texas prisoner # 09083221. Mitchell moves for appointment of counsel;
his motion is DENIED.
        The appellants contend that the district court erred by denying their
summary judgment motion because, pursuant to Scott v. Harris, 550 U.S. 372

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-11208

(2007), it should not have to accept Mitchell’s conclusional version of events as
true given that his medical records prove that he did not sustain any injury as
a result of an alleged improper use of force. Alternatively, the appellants argue
that even taking Mitchell’s facts as true, the district court erred in concluding
that they violated Mitchell’s constitutional rights because he did not offer any
competent summary judgment evidence demonstrating that their actions were
objectively unreasonable or that he sustained some type of injury.
      Although the denial of a motion for summary judgment based upon
qualified immunity is a decision that is immediately appealable, see Easter v.
Powell, 467 F.3d 459, 462 (5th Cir. 2006), our jurisdiction is “significantly
limited,” extending to questions of law only. Kinney v. Weaver, 367 F.3d 337, 346
(5th Cir. 2004) (en banc). We lack jurisdiction to consider the issue whether
Mitchell’s summary judgment evidence could support a finding that the
appellants actually engaged in objectively unreasonable conduct. See id. at 347-
48 (allowing review of purely legal questions and requiring that plaintiff’s
allegations be taken as true for purposes of summary judgment on qualified
immunity).
      We need not decide whether Scott carves out a narrow exception to the
applicable standard of review because the facts of this case are distinguishable.
In Scott, the United States Supreme Court concluded that the district court did
not have to take the plaintiff’s obviously false allegations as true given the
existence of an objective videotape that captured the incident in its entirety and
negated the plaintiff’s version of events. Scott, 550 U.S. at 380-81. Here,
although Mitchell’s medical records may speak to the extent of his injuries, they
do not resolve the issue of whether the appellants engaged in objectively
unreasonable conduct. Moreover, to the extent that the appellants rely on
Mitchell’s medical records to demonstrate that he exaggerated the seriousness
of his injuries, Mitchell’s credibility is not an issue appropriate for determination



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                                       No. 10-11208

on summary judgment. See Tarver v. City of Edna, 410 F.3d 745, 753 (5th Cir.
2005).
       When analyzing whether a government official is entitled to qualified
immunity for an alleged constitutional violation, we determine whether the
defendant’s conduct violated a clearly established statutory or constitutional
right of which a reasonable person would have known. Longoria v. Texas, 473
F.3d 586, 592 (5th Cir. 2006). We also consider “whether the defendant’s actions
were objectively unreasonable in light of clearly established law at the time of
the conduct in question.” Freeman v. Gore, 483 F.3d 404, 410-11 (5th Cir. 2007)
(internal citations omitted).        When prison officials stand accused of using
excessive force in violation of the Eighth or Fourteenth Amendments, “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); see also Valencia v. Wiggins, 981
F.2d 1440, 1446 (5th Cir. 1993) (noting that the standard is the same under both
amendments).1
       Mitchell’s allegations in his verified complaint serve as competent
summary judgment evidence, see King v. Dogan, 31 F.3d 344, 346 (5th Cir.
1994), and suggest a possible constitutional violation. As the district court
summarized, Mitchell alleged that he complied with orders during the
shakedown and neither moved nor spoke, but that Cervantes smashed his face
into a wall and twisted his arm without provocation. According to Mitchell,
while the appellants were escorting him to the holdover cell, they continued to
torture him by slamming him into the walls and onto the floor and kneeing him

       1
        Mitchell’s status was unclear at the time of the incident because he was arrested for
an unspecified parole violation and, thus, to some extent could have been considered a pretrial
detainee rather than a convicted prisoner. An excessive use of force claim raised by a pretrial
detainee is also governed by the Fourteenth Amendment’s due process clause. See Brothers
v. Klevenhagen, 28 F.3d 452, 455-56 (5th Cir. 1994); see also Rankin v. Klevenhagen, 5 F.3d
103, 106 (5th Cir. 1993) (noting that the same standards would govern the court’s analysis
even where review hinged upon the parole status of the appellee).

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                                 No. 10-11208

in the back. If Mitchell complied with all orders, then the appellants could not
have reasonably perceived any threat requiring a need to use force.
      Based on Mitchell’s proffered facts, the appellants’ use of force was not
made in a “good faith effort to maintain or restore discipline” and was not
“nontrivial” but disproportionate to any possible provocation. See Hudson, 503
U.S. at 6-7. Moreover, although the district court stated that Mitchell’s medical
records “may” show a lack of physical injury or demonstrate that the appellants
tempered the severity of their force, the district court made no conclusions
regarding Mitchell’s actual injuries. See Harper v. Showers, 174 F.3d 716, 719
(5th Cir. 1999); Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998). On
Mitchell’s allegations, as summarized by the district court, the appellants have
not shown that their course of conduct was not objectively unreasonable under
clearly existing law. See Hudson, 503 U.S. at 6-7; Kinney, 367 F.3d at 347.
Accordingly, they have not demonstrated that they are entitled to qualified
immunity as a matter of law. See Freeman, 483 F.3d at 410-11.
      AFFIRMED; MOTION FOR APPOINTMENT OF COUNSEL DENIED.




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