* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 97-20123

Summary Calendar

 

JOHNNY R. SIMMONS,

Plaintiff-Appellant,

versus

D. D. KOLODZIK; VILLARREAL, Deputy;

JOHNNY KLEVENHAGEN; TOMMY THOMAS, Sheriff,

Defendants-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Southern District of Texas

USDC No. H-94-CV-3035

- - - - - - - - - -

September 24, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Johnny Simmons, Texas prisoner #578087, appeals the district

court’s grant of summary judgment dismissing his suit brought

under 42 U.S.C. § 1983. Simmons contends that the district court

erred in granting summary judgment in favor of Deputy Kolodzik,

Deputy Villarreal, Johnny Klevenhagen, and Tommy Thomas on his

claims of excessive force, retaliation, and conspiracy.
No. 97-20123 

-2-

When considering an excessive-force claim, “the core

judicial inquiry is . . . whether force was applied in a goodfaith effort to maintain or restore discipline, or maliciously

and sadistically to cause harm.” Hudson v. McMillian, 503 U.S.

1, 7 (1992). In order to have an actionable excessive-force

claim, the plaintiff must show some injury; de minimis uses of

physical force are not constitutionally protected. See Knight v.

Caldwell, 970 F.2d 1430, 1432 (5th Cir. 1992). 

In response to the summary-judgment motions of Kolodzik and

Thomas, Simmons submitted an unsworn declaration made under

penalty of perjury. Simmons’ unsworn declaration was competent

summary-judgment evidence. See 28 U.S.C. § 1746; Nissho-Iwai

American Corp. v. Kline, 845 F.2d 1300, 1306 (5th Cir. 1988). In

that declaration, Simmons stated that Kolodzik, Villarreal, and a

third deputy beat him into a state of unconsciousness after a

prior altercation with Kolodzik while he was handcuffed and

inside an elevator. 

The district court discounted Simmons’ unsworn declaration,

stating that it was “insubstantial.” We do not agree. Simmons’

unsworn declaration flatly contradicted the summary-judgment

evidence of Kolodzik and Thomas and created a fact issue “whether

force was applied . . . maliciously and sadistically to cause

harm.” See Hudson, 503 U.S. at 7. The district court’s grant of

summary judgment in favor of Kolodzik and Villarreal on Simmons’

excessive-force claim was inappropriate in light of this fact

issue. 
No. 97-20123 

-3-

The district court’s judgment cannot be affirmed on the

basis of qualified immunity. See Hanchey v. Energas Co., 925

F.2d 96, 97 (5th Cir. 1990)(district court’s judgment may be

affirmed on alternate grounds). Qualified immunity is an

affirmative defense which must be pleaded by the party. Harlow

v. Fitzgerald, 457 U.S. 800, 815 (1982). Villarreal did not file

an answer in this case nor assert qualified immunity as an

affirmative defense. Although Kolodzik asserted qualified

immunity in his answer and motion for summary judgment, Simmons’

unsworn declaration created a fact issue whether Kolodzik’s

conduct was objectively reasonable. See Rankin v. Klevenhagen,

5 F.3d 103, 105 (5th Cir. 1993). 

Accordingly, the district court’s judgment in favor of

Kolodzik and Villarreal on Simmons’ excessive-force claim is

VACATED and REMANDED for further proceedings. Simmons’ remaining

claims of retaliation and conspiracy are without merit. The

district court’s judgment in favor of Kolodzik and Villarreal is

AFFIRMED as to those claims. Simmons has abandoned all of his

claims against Thomas and Klevenhagen by failing to raise and

argue those claims in his main brief on appeal. See Cinel v.

Connick, 15 F.3d 1338, 1345 (5th Cir. 1994). Accordingly, the

district court’s judgment in favor of Thomas and Klevenhagen is

AFFIRMED in all respects.

AFFIRMED IN PART, VACATED AND REMANDED IN PART.