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Click here for the full text of this decision FACTS:Marcus Brown alleges that on Sept. 12, 1998, Correctional Officer Fred Lippard came to his cell under the pretense of escorting him to recreation. As Brown exited his cell, Lippard grabbed his arm and told him, “You don’t lead me, I lead you.” A brief exchange ensued in which Lippard indicated Brown’s recreation privileges were denied. Brown, believing Lippard was set on harassing him, asked to speak with a superior officer and sat down to wait for one to arrive. As Brown sat knelt on one knee, Lippard allegedly struck him several times in his back, head and shoulders. Lippard also tried to ratchet his arms � at that point handcuffed behind him � up and over his head. Lippard issued Brown citations for creating a disturbance and refusing an order. Prison officials later dismissed both citations. After the attack, Brown went immediately to a physician and complained of knee, hand and shoulder pain. The nurse noted one- centimeter abrasions on both his left knee and left shoulder, pain in his right knee, and tenderness around his left thumb. Brown also alleges that the attack exacerbated his prior back problems and contributed to chronic tendinitis. Lippard introduced evidence from Dr. Glenda Adams concluding that Brown’s injuries were minor, since there were no fractures, sprains, lacerations or bleeding. Brown sued under 42 U.S.C. �1983 claim for compensatory and punitive damages, arguing that Lippard violated his Eighth Amendment right to be free from cruel and unusual punishment. Brown had previously prevailed on this claim and was awarded damages in a jury trial, but the district court set aside that judgment, because Brown had not exhausted his administrative remedies. Having exhausted his administrative remedies, Brown renewed his �1983 claim. Lippard moved for summary judgment, arguing that he was entitled to qualified immunity, but the trial court denied the motion. Lippard made an interlocutory appeal of the denial of summary judgment, arguing that Brown never showed anything more than a de minimis injury and thereby cannot overcome his qualified immunity protection. HOLDING:Affirmed. The 5th U.S. Circuit Court of Appeals has never directly held that injuries must reach beyond some arbitrary threshold to satisfy an excessive force claim. Even if a threshold existed, the court found that Brown’s injuries satisfied any such standard. In evaluating excessive force claims, the court states that courts look to the seriousness of the injury to determine “whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” Lippard, the court noted, repeatedly attempted to minimize Brown’s injuries as requiring “no more than swabbing with Betadine.” But the U.S. Supreme Court has put to rest a seriously misguided view that pain inflicted by an excessive use of force is actionable under the Eighth Amendment only when coupled with significant injury (injury that requires medical attention or leaves permanent marks). Lippard’s non-treating physician affidavit, the court noted, concluded that the injuries were de minimis and not the result of excessive force. While the physician’s affidavit is certainly some evidence that Brown’s injuries are not as severe as he claims, it does not support the legal conclusion that the undisputed injuries were de minimis, the court found. Second, the court also noted, Lippard asserted that there was no evidence properly before the district court that his actions were in bad faith and therefore that Brown did not overcome the immunity shield. The evidence that Lippard was acting in bad faith, the court stated, came from both a fellow officer and an inmate who described Brown’s behavior as cooperative and unthreatening. But Lippard, the court stated, complains that such evidence was not in the record on summary judgment, but rather came from the prior action that had been dismissed for failure to exhaust remedies, and the judge mistakenly took judicial notice of it. Lippard’s argument on this matter is off point, the court found. The district judge did not have to credit the testimony of the officer and inmate “for the truth asserted.” The judge only had to notice that such testimony existed, because the testimony’s very existence raises an issue of fact sufficient to overcome summary judgment. Because the testimony’s existence was not subject to reasonable dispute and capable of accurate and ready determination, the court held that the district court had discretion to take judicial notice of it. OPINION:Benavides, J.; Smith, Benavides and Prado, J.J.

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