Arcade Comeaux, Jr. v. Darrell Sutton

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.

Case: 11-20092 Document: 00512017339 Page: 2 Date Filed: 10/11/2012

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

2

Case: 11-20092 Document: 00512017339 Page: 3 Date Filed: 10/11/2012

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

3

Case: 11-20092 Document: 00512017339 Page: 4 Date Filed: 10/11/2012

No. 11-20092

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.

4

Case: 11-20092 Document: 00512017339 Page: 5 Date Filed: 10/11/2012

No. 11-20092

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

5

Case: 11-20092 Document: 00512017339 Page: 6 Date Filed: 10/11/2012

No. 11-20092

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

6

Case: 11-20092 Document: 00512017339 Page: 7 Date Filed: 10/11/2012

No. 11-20092

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.

7

Case: 11-20092 Document: 00512017339 Page: 8 Date Filed: 10/11/2012

No. 11-20092

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

8

Case: 11-20092 Document: 00512017339 Page: 9 Date Filed: 10/11/2012

No. 11-20092

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.

9

Case: 11-20092 Document: 00512017339 Page: 10 Date Filed: 10/11/2012

No. 11-20092

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.

10

Case: 11-20092 Document: 00512017339 Page: 11 Date Filed: 10/11/2012

No. 11-20092

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.

11