Brewer v. Prier

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 5, 2009
No. 08-30845
Summary Calendar Charles R. Fulbruge III
Clerk
KEITH BREWER,
Plaintiff-Appellant,
versus
CRIS PRIER,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
No. 1:03-CV-451
Before SMITH, STEWART, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Keith Brewer, Louisiana prisoner # 168208, filed a pro se civil rights com-
plaint pursuant to 42 U.S.C. § 1983, alleging that Cris Prier, an Avoyelles Parish
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-30845
police officer, used excessive force against him on August 3, 2002, while he was
incarcerated in the Avoyelles Parish Jail. Brewer also alleged that the former
sheriff, William Belt, failed to respond properly to the incident.
At the close of Brewer’s case in the bench trial, the district court granted
the defendants’ motion to dismiss Brewer’s claims against Belt. The court con-
cluded that Brewer had failed to prove that he suffered more than a de minimis
injury and had failed to demonstrate that the use of force was clearly excessive
or was clearly unreasonable. The court dismissed the § 1983 action with preju-
dice and denied Brewer leave to proceed in forma pauperis (“IFP”) on appeal.
Brewer moves to proceed IFP in this court. By doing so, he is challenging
the district court’s certification that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997); 28 U.S.C. § 1915(c)(3); F ED.
R. A PP. P. 24(a). He does not challenge the dismissal of his claims against Belt,
so those claims are abandoned. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir.
1993). Instead, Brewer contends that the evidence supports his contention that
Prier used excessive force that resulted in injury.
To prevail on a claim of excessive force, Brewer must establish that the
force was not applied in a good-faith effort to maintain or restore discipline, but
maliciously and sadistically to cause harm, and that he suffered injury. Hudson
v. McMillian, 503 U.S. 1, 6-7 (1992). Factors relevant to that inquiry include the
following non-exclusive list: (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) efforts made to temper the severity of a forceful response. Baldwin v. Stal-
der, 137 F.3d 836, 838-39 (5th Cir. 1998).
The evidence demonstrates that Prier tried to obtain Brewer’s compliance
through non-forceful means, but Brewer’s continued noncompliance made the
use of force necessary. Further, the application of that force was not clearly ex-
cessive to the need to restore discipline such that it constituted a constitutional
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No. 08-30845
violation. See id. at 838-39; Hudson, 503 U.S. at 6-7. Thus, even if Prier could
demonstrate a more than de minimis injury, he has failed to show a constitution-
al violation.
Brewer has not established that he will present a nonfrivolous issue on ap-
peal. See Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983). Accordingly, leave
to proceed IFP is denied, and the appeal is dismissed as frivolous. See Baugh,
117 F.3d at 202 n.24; 5 TH C IR. R. 42.2.
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