The opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 30, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 02-51042
Summary Calendar
LARRY KEELE,
Plaintiff-Appellee,
versus
M. LEYVA, Bailiff,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-01-CV-1004
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Merced Leyva appeals from the court’s denial of his summary
judgment motion on the grounds of qualified immunity. This appeal
arises from a civil rights complaint filed by prison detainee Larry
Keele.
In his complaint alleging excessive use of force, Keele argued
that after he had informed Leyva, a bailiff in charge of
transporting Keele from the courthouse to the detention center,
that he had a sore shoulder, Leyva proceeded to exert excessive
*
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this opinion should not be published and is not precedent except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.
force in securing his handcuffs behind his back. In response
to Keele’s cursing that Leyva would break his arm, Leyva berated
Keele that if he did not like being handcuffed then he should not
come to jail. Keele sought medical treatment after the incident
and was treated for an over-rotated shoulder.
Leyva argues that the court erred in denying him summary
judgment because he is entitled to qualified immunity, and
alternatively, that Keele’s injury was de minimis. The court
determined that a fact issue existed over whether excessive
force was used and denied summary judgment. Leyva filed this
interlocutory appeal.
As an initial matter, this court must determine jurisdiction to
hear this appeal. Keele argues that this court lacks jurisdiction
over this interlocutory appeal of the denial of qualified immunity
because the court deemed the issue to be a factual determination.
Although Leyva does not contest our jurisdiction, we have a duty to
satisfy ourselves of our own jurisdiction. See United Transp.
Union v. Foster, 205 F.3d 851, 857 (5th Cir. 2000).
This court has jurisdiction on interlocutory appeal to review
the denial of a summary judgment based on qualified immunity only
to the extent that the denial raises a question of law. See
Gonzales v. Dallas County, Tex., 249 F.3d 406, 411 (5th Cir.
2001)(citation omitted). The existence of some factual disputes
will not defeat this court’s jurisdiction; if the disputed facts
are immaterial to the question of qualified immunity, this court
2
has jurisdiction to review the summary judgment. See Mendenhall v.
Riser, 213 F.3d 226, 230 (5th Cir. 2000). Here, the issue of
qualified immunity involves undisputed material facts, therefore,
the court has jurisdiction to hear the appeal.
To establish a cognizable claim of excessive force, the
plaintiff must demonstrate a violation of a clearly established
constitutional right and must establish that the defendant’s
conduct was objectively unreasonable under clearly established law.
Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997) (citation
omitted). Factors integral to this analysis include: (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 a
forceful response. Hudson v. McMillian, 503 U.S. 1, 6-7 (5th Cir.
1992). The injury must be more than a de minimis physical injury,
but need not be significant or serious. Gomez v. Chandler, 163
F.3d 921, 924 (5th Cir. 1999).
As the magistrate judge in this case correctly recognized, the
mere handcuffing of Keele did not raise a constitutional claim.
See Williams v. Bramer, 180 F.3d 699, 704, clarified, 186 F.3d 633,
634 (5th Cir. 1999). However, once Keele alerted Leyva to his
shoulder condition, the continued exertion of force in securing the
restraint rose to the level of malice. See id. at 704. Because
Keele has stated a cognizable claim of excessive force, the
3
district court did not err in denying Leyva’s motion for summary
judgment.
AFFIRMED.
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