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

                                                                             FILED
                                                                          November 3, 2009
                                     No. 09-30437                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk


ANGELO GIARDINA,

                                                   Plaintiff - Appellee
v.

ROBERT LAWRENCE,

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No: 2:07-cv-06578


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Angelo Giardina brought suit against several defendants for violating his
Fourth and Fourteenth Amendment rights to be free from excessive force. One
of the defendants moved for judgment on the pleadings based on qualified
immunity. The district court denied the motion. We AFFIRM.
       Giardina alleged that on October 9, 2006, he was attacked by another
driver on the roadway in New Orleans. His attacker fled on foot; Giardina



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-30437

pursued and, using his cell phone, dialed 911 to report the incident. A National
Guardsman apprehended the attacker. As Giardina stood by his vehicle, still on
the line with the 911 operator, he was shot by another National Guardsman,
Robert Lawrence. Giardina was then arrested for the crime of aggravated
assault upon a peace officer with a firearm, even though no firearm was ever
recovered from him.
      Giardina filed suit under Section 1983, claiming battery under Louisiana
law and excessive force and false arrest in violation of the Fourth and
Fourteenth Amendments. See 42 U.S.C. § 1983. He sued Lawrence, the City of
New Orleans, and Lieutenant Fred Austin, the police officer who ultimately
arrested him.
      The defendants moved for judgment on the pleadings or, in the alternative,
summary judgment. The district court dismissed the false arrest claims against
Lawrence, Austin, and the City of New Orleans. Denied was the motion for
judgment on the pleadings or for summary judgment as to the claims against
Lawrence for excessive force in violation of the Fourth and Fourteenth
Amendments. That claim was the only one remaining after the dismissal of the
false arrest claims. Lawrence appealed the denial of his motion for judgment on
the pleadings. He argues that Giardina did not plead sufficient facts to identify
a Fourth Amendment violation or to overcome qualified immunity.
      We have jurisdiction to review the district court’s order, even though it is
not a final judgment. A district court order denying qualified immunity is
reviewable under the collateral order doctrine, provided the decision is based on
a question of law. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1945-46 (2009).
      On appeal, we review de novo a district court’s denial of a Rule 12(c)
motion for judgment on the pleadings. Great Plains Trust Co. v. Morgan Stanley
Dean Witter & Co., 313 F.3d 305, 312 (5th Cir. 2002).            We accept the
well-pleaded facts in the complaint as true and view them in the light most
favorable to the plaintiff. Id. at 312-13. A motion to dismiss is granted if the
                                    No. 09-30437

plaintiff would not be entitled to relief under any set of facts provable consistent
with the complaint. Id. at 313.
        In order to state a claim for the constitutional violation of excessive force,
Giardina must establish that an injury occurred that resulted directly from the
use of clearly excessive force, and that the excessiveness was unreasonable.
Ontiveros v. City of Rosenberg, Tex., 564 F.3d 379, 382 (5th Cir. 2009).
        Taking the pleaded facts in the light most favorable to Giardina, we find
that he may be able to prove excessive force in violation of the Fourth and
Fourteenth Amendments.          It is true that the complaint did not include
allegations that addressed the likely qualified immunity defense. However, a
plaintiff need not anticipate the defense in the complaint. Johnson v. Johnson,
385 F.3d 503, 529 (5th Cir. 2004).          Thus, Lawrence’s argument that the
complaint has not overcome qualified immunity is without merit.
        Even though the complaint did not anticipate the defense, there are
appropriate procedures which the district court has discretion to follow. The
district court, on its own or on the defendant’s motion, may require the plaintiff
to reply to the qualified immunity defense in detail under Federal Rule of Civil
Procedure 7. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). The court
may initially limit necessary discovery to the qualified immunity defense. Id. at
1434.
        The district court did not err in denying Lawrence’s motion for judgment
on the pleadings on the excessive force claim. We AFFIRM.
