The opinion
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 97-20742
Summary Calendar
FAVIS CLAY MARTIN,
Plaintiff-Appellant,
VERSUS
D. B. MCELVANEY; ET AL.
Defendants,
D. B. MCELVANEY; B. C. DIXON,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(H-84-CV-2176)
May 14, 1998
Before WISDOM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Favis Clay Martin, Texas prisoner 11809-077, filed suit under
42 U.S.C. § 1983 alleging that D.B. McElvaney and Ernest Dixon,
both employees of the Texas Department of Criminal Corrections,
subjected him to excessive force and intentionally inflicted
*
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this opinion should not be published and is not precedent except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.
emotional distress upon him in violation of the Eighth Amendment of
the United States Constitution and also of Texas law. After a jury
rendered a verdict of acquittal, Martin filed an appeal in which he
contended that the district court improperly instructed the jury.
We reversed and remanded for a new trial.2 In our opinion, we
dismissed the defendants’ assertion that their entitlement to
qualified immunity in the first instance rendered a remand
unnecessary. We refused to address substantively the issue of
qualified immunity because the defendants had not raised the
argument in the district court. Instead, we elected to “leave it
for the district court to decide [on remand].3
On remand, the defendants filed a motion for summary judgment.
The district court denied the motion without prejudice to allow the
defendants to renew the motion after amending their answer to
Martin’s complaint. The defendants then sought leave to file a
supplemental answer in which they would assert the defense of
qualified immunity. The district court granted leave, and the
defendants submitted an amended answer along with a renewed motion
for summary judgment. The district court found that McElvaney and
Dixon were entitled to qualified immunity and thus granted the
motion. Martin filed a timely notice of appeal. We affirm.
Martin alleges two assignments of error: (1) the district
2
Martin v. McElvaney, 92-2103, slip op. (5th Cir. August 1,
1994).
3
Id. at 14.
2
court erred in considering the issue of qualified immunity on
remand, and (2) the district court improperly found that the
defendants were entitled to qualified immunity. We address each
argument in sequence.
The district court did not err in considering the qualified
immunity issue. In our previous opinion, we explicitly reserved
for the district court the right to consider the qualified immunity
issue. Furthermore, we did not hold that the defendants had waived
the argument by failing to raise it at the outset of the
litigation.4
A de novo review5 of the record shows that the district court
properly granted summary judgment for the defendants on the basis
of their entitlement to qualified immunity. We apply a bifurcated
test in assessing the question of qualified immunity: First, we
determine whether the plaintiff has alleged the violation of a
clearly established constitutional right under the current state of
the law. Second, we decide whether the defendants’ conduct was
objectively reasonable, measured by reference to the law as clearly
established at the time of the alleged conduct.6
4
We also note that the district court did not abuse its
discretion in granting the defendants leave to amend their
pleading. Leave shall be freely given when justice so requires.
See Fed. R. Civ. P. 15(a).
5
See Weyant v. Acceptance Ins. Co., 917 F.2d 209, 212 (5th
Cir. 1990).
6
Pierce v. Smith, 117 F.3d 866, 872 (5th Cir. 1997).
3
The first part of the test is governed in part by Hudson v.
McMillian,7 a case in which the Supreme Court held that a plaintiff
need not necessarily demonstrate that he suffered a significant
injury to properly allege a violation of a clearly established
constitutional right.8 The Court stated that “whenever prison
officials stand accused of using excessive physical force in
violation of the Cruel and Unusual Punishment Clause, 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.”9 The Court went on to list several
factors that should guide this inquiry: (1) the extent of the
injury suffered, (2) the need for the application of force, (3) the
relationship between the 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 the forceful response.10
Martin alleged that the defendants maliciously injured him in
retaliation for testimony that he gave at a prison disciplinary
hearing.11 Drawing all inferences in the light most favorable to
7
503 U.S. 1 (1992).
8
Id. at 6-8.
9
Id.
10
Id. at 7-8.
11
Martin specifically alleges that he testified on behalf of
another inmate at a disciplinary hearing over which McElvaney
presided. McElvaney accused Martin of lying and ordered that he be
placed in administrative segregation. Approximately one hour
4
Martin,12 it appears that he has alleged a violation of clearly
established law.
Nevertheless, McElvaney and Dixon are still entitled to
qualified immunity if their action was objectively reasonable as
measured by law clearly established at the time of the incident.
At time Martin’s injury occurred, the controlling law in excessive
force Eighth Amendment claims was that articulated in Shillingford
v. Holmes.13 Under Shillingford, a prison official’s action was
redressable under § 1983 only if the action “caused severe
injuries, was grossly disproportionate to the need for action under
the circumstances, and was inspired by malice rather than mere
carelessness or unwise excess of zeal so that it amounted to an
abuse of official power that shocks the conscience.”14 Accordingly,
we must review the objective reasonableness of McElvaney’s and
later, Dixon retrieved Martin from his cell and escorted him to
McElvaney’s office. Once inside the office, McElvaney directed
Martin to empty his pockets onto the desk. Martin complied, but
McElvaney swept the items off the desk. When he bent over to pick
everything up, Dixon placed his foot on the back of Martin’s hand,
and McElvaney grabbed Martin by his hair and hit him in the face
while calling him a liar and a troublemaker. Dixon then began to
kick Martin in the back. As a result of the attack, Martin
suffered swollen eyes, a bruised nose and split lip. Officials
ignored his requests for medical attention.
12
Newell v. Oxford Management, Inc., 912 F.2d 793, 795 (5th
Cir. 1990).
13
634 F.2d 263 (5th Cir. 1981).
14
Id. at 265.
5
Dixon’s conduct under these standards.15 Martin has failed to raise
a genuine issue of material fact as to the severity of the injuries
he allegedly suffered at the hands of the defendants. Even if
Martin suffered minor injuries, they were not so grievous as to
warrant constitutional relief under Shillingford.16 The defendants
were therefore entitled to summary judgment on the basis of
qualified immunity.
As we have stated in the past, “we are not unmindful that the
bifurcated qualified immunity analysis leads to a somewhat
schizophrenic approach; i.e., the application of Hudson to the
question of constitutional violation coupled with the application
of Shillingford to the objective reasonableness question, even
though Hudson jettisoned Shillingford’s severe injury element.
Nevertheless, this is the proper framework to apply.”17
The judgment of the district court is affirmed.18
15
See Rankin v. Klevenhagen, 5 F.3d 103, 109 (5th Cir. 1993).
16
See Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984)
(bruises on arm, scrapes on face, welts raised by handcuffs, sore
throat and hoarse voice resulting from choke hold not severe
injuries).
17
Rankin at 109.
18
We reject Martin’s argument that he has been deprived of an
effective appeal.
6