IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30329

CHRISTOPHER WHITE,

Plaintiff-Appellant

v.

HOWARD BROWN, Lieutenant; JAMES DAUZAT, Captain; RAY 

VICTTORIA, Colonel; TIM DELANEY, Warden,

Defendants-Appellees

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:13-CV-17

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Christopher White, Louisiana prisoner # 365408, moves for leave to 

appeal in forma pauperis (IFP) from the dismissal of a 42 U.S.C. § 1983 civil 

rights complaint he filed against Lt. Howard Brown, Capt. James Dauzat, and 

two other defendants employed by the Louisiana Department of Corrections. 

White alleged that he was subjected to excessive force in violation of the Eighth 

Amendment when Dauzat ordered Brown to spray him with a chemical agent. 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

November 4, 2014

Lyle W. Cayce

Clerk

 

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No. 14-30329

The district court granted summary judgment for the defendants based on 

qualified immunity. 

By moving to proceed IFP, White challenges the certification that his 

appeal is not in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 

1997). He must show that his “appeal involves ‘legal points arguable on their 

merits (and therefore not frivolous).’” Howard v. King, 707 F.2d 215, 220 (5th 

Cir. 1983) (citation omitted). We may dismiss the appeal “when it is apparent 

that an appeal would be meritless.” See Baugh, 117 F.3d at 202 & n.24; see

5TH CIR. R. 42.2. 

“Summary judgment is proper if the pleadings and evidence show there 

is no genuine issue of material fact and the moving party is entitled to 

judgment as a matter of law.” See Hernandez v. Yellow Transp., Inc., 670 F.3d 

644, 650 (5th Cir. 2012); FED. R. CIV. P. 56(a). The nonmovant “cannot defeat 

summary judgment with conclusory allegations, unsubstantiated assertions, 

or only a scintilla of evidence.” Hathaway v. Bazany, 507 F.3d 312, 319 (5th 

Cir. 2007) (internal quotation marks and citations omitted). Because the 

defendants asserted qualified immunity, White had the burden of “establishing 

that the [defendants’] allegedly wrongful conduct violated clearly established 

law and that genuine issues of material fact exist regarding the reasonableness 

of the [defendants’] conduct.” Gates v. Texas Department of Protective and 

Regulatory Services, 537 F.3d 404, 419 (5th Cir. 2008). He may not “rest on 

conclusory allegations and assertions but must demonstrate genuine issues of 

material fact regarding the reasonableness of the [defendants’] conduct.” 

Michalik v. Hermann, 422 F.3d 252, 262 (5th Cir. 2005). To prevail on a claim 

of excessive force, White was required to show that force was not “applied in a 

good-faith effort to maintain or restore discipline,” but rather “maliciously and 

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No. 14-30329

sadistically for the very purpose of causing harm.” See Hudson v. McMillian, 

503 U.S. 1, 6 (1992). 

The defendants presented a large amount of summary-judgment 

evidence to show that Brown applied a minimal amount of force, resulting in 

no objectively observable harm to White, in order to put an end to White’s 

defiance and aggravated disobedience. In response, White has reiterated his 

narrative and presented at most a scintilla of evidence about marginally 

relevant facts, mostly concerning disciplinary proceedings arising from the 

disturbance. His specific contentions are simply not supported by the record. 

In addition, White does not dispute that he received medical attention 

right after he was sprayed and that he showed no objective sign of injury. The 

absence of significant injury is an “objective component” of the analysis and is 

relevant to whether the use of force was wanton and unjustified, and to show 

efforts to temper its severity. Hudson, 503 U.S. at 7-8. White also abandoned 

his claims against defendants Ray Victtoria and Tim Delaney. See Raj v. 

Louisiana State University, 714 F.3d 322, 327 (5th Cir. 2013). 

White has failed to carry his burden in opposing summary judgment 

based on qualified immunity. See Gates, 537 F.3d at 419. Because he identifies 

no nonfrivolous issue for appeal, his IFP motion is DENIED, and the appeal is 

DISMISSED. See Baugh, 117 F.3d at 202 & n.24; 5TH CIR. R. 42.2. 

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