Banks v. Bryant ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 9, 2003
Charles R. Fulbruge III
Clerk
No. 02-60743
Summary Calendar
LARRY BANKS,
Plaintiff-Appellant,
versus
DOLPH BRYANT, Etc.; ET AL,
Defendants,
ANTHONY JOHNSON, in his individual
capacity as deputy of the Oktibbeha
County Sheriff’s Department; ED BLASINGAME,
in his official capacity as deputy of the
Oktibbeha County Sheriff’s Department,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 1:00-CV-106
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Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Larry Banks, now Mississippi prisoner # K0423, appeals the
summary-judgment dismissal of his 42 U.S.C. § 1983 civil rights
lawsuit alleging that Oktibbeha County, Mississippi, Deputy Sheriff
Anthony Johnson assaulted him without provocation, subjecting him
*
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this opinion should not be published and is not precedent except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.
to excessive force, and that Deputy Sheriff Ed Blasingame observed
the assault, failed to intervene, and failed to provide him with
medical care after he requested it. Banks argues that material
factual disputes existed which precluded summary judgment.
This court reviews a district court’s grant of summary
judgment de novo, applying the same standard as would the district
court. See Melton v. Teachers Ins. & Annuity Ass’n of Am., 114
F.3d 557, 559 (5th Cir. 1997). Summary judgment is proper where
the pleadings and summary judgment evidence present no genuine
issue of material fact and the moving party is entitled to a
judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court may
not weigh the evidence nor make credibility determinations. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Banks is correct that material factual disputes existed which
precluded summary judgment. The deputies submitted competent
summary-judgment evidence to show that the force employed by Deputy
Johnson was provoked by Banks’ refusal to return to his holding
cell, was applied to restore order, was reasonable and in
proportion to the need, and did not result in any injury to Banks.
Their summary-judgment evidence also tended to show that Banks
neither required nor requested medical treatment. Banks responded
to the summary-judgment motion with only conclusional allegations,
which, standing alone, would be insufficient to defeat summary
judgment. See Michaels v. Avitech, Inc., 202 F.3d 746, 754-55 (5th
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Cir. 2000). However, as part of their summary-judgment motion, the
deputies submitted a copy of Banks’ sworn deposition testimony,
wherein Banks asserted that Deputy Johnson beat, shoved, and choked
him without provocation; that the assault resulted in what felt
like a broken finger, bleeding abrasions to the head, bruised ribs,
and back pain; and that Deputy Blasingame observed the assault,
failed to intervene, and refused to provide him with medical care
when he requested it. The deposition testimony was competent
summary-judgment evidence. See Nissho-Iwai American Corp. v.
Kline, 845 F.2d 1300, 1306 (5th Cir. 1988).
If Banks’ allegations as stated in the deposition are true,
they are sufficient to state a claim for both excessive force and
the denial of medical care, in violation of his constitutional
rights. See Williams v. Bramer, 180 F.3d 699, 703-04, clarified on
reh’g, 186 F.3d 633, 634 (5th Cir. 1999); Eason v. Holt, 73 F.3d
600, 601 (5th Cir. 1996); see also Farmer v. Brennan, 511 U.S. 825,
837 (1994); Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir. 1985).
In holding that Banks sustained at most de minimis injuries not
requiring medical care, that Banks had not in fact requested any
medical treatment, and that any force used by Deputy Johnson was
used in good-faith effort to maintain order in the jail, not
maliciously or sadistically to cause Banks harm, the district court
credited the deputies’ sworn factual allegations and rejected
Banks’ sworn deposition testimony. This was error at the summary-
judgment stage. See Anderson, 477 U.S. at 248. Because the
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material facts underlying Banks’ claims are in dispute and because
the dispute cannot be resolved without making a credibility
determination, this court must vacate the district court’s judgment
and remand the case for further proceedings. See id.; see also
Celotex, 477 U.S. at 322; FED. R. CIV. P. 56(c).
VACATED AND REMANDED.
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