### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 12-30424 Summary Calendar

MONDRELL WILSON, Plaintiff-Appellant

v. LUKE RHEAMS, Captain; N. BURL CAIN, Warden; LESL I E DUPONT, Assistant Warden of Security, Defendants-Appellees

Appeal from the United States District Court for the Middle District of Louisiana USDC No. 3:11-CV-289

Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM: * Mondrell Wilson, Louisiana prisoner # 378506, seeks leave to proceed in forma pauperis (IFP) on appeal. By moving for IFP, Wilson is challenging the district court’s certification that IFP status should not be granted on ap peal because his appeal from the dismissal of his 42 U.S.C. § 1983 suit is not taken in good faith. See Baugh v. Taylor , 117 F.3d 197, 202 (5th Cir. 199 7). U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 11 , 20 12 Lyle W . Cayce Clerk

Purs uant to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 12-30424 Document: 00512016450 Page: 1 Date Filed: 10/11/2012No. 12-30424

Wilson argues that the district court erred in dismissing his complaint for failure to state a claim. He contends t h a t t h e d i s trict court applied an unreasonable standard to his e x c essive force claim. He asserts that without
p rovo c atio n , C ap t ain Rh e a m s choked him to near unconsciousness and flu n g hi m to the ground o u t o f his wheelchair. He argues that the district court erred in its opinion that an excessive force claim must be proven by a certain amount of actual physical injuries. We review de novo a district court’s grant of a motion to dismiss for failure to state a cla i m u p o n w hich relief can be granted under Federal Rule of Civil Procedure 12(b)(6). In re Katrina Canal Breaches Litigation , 495 F.3d 191, 205 (5th Cir.2007); F E D
. R. C IV
. P R O C
. 12(b)(6). We must accept all well-pleaded facts

as true and must view them in the light most favorabl e t o the plaintiff. In re Katrina , 495 F.3d at 205. When prison officials stand accused of using excessive force in violation of the Eighth Amendment, “the core judicial inquiry i s . . . w h ether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian , 5 0 3 U.S. 1, 6-7 (1992). In Hudson , the Supreme Court held that “the use of excessive p hy s ical force against

a prisoner may constitute cruel and unusual punishment when the inmate does not suffer serious injury,” r ejecting this court’s earlier requirement of “significant injury” to establish a claim of excessive force. Hudson , 503 U.S. at 4. The Supreme Court has also rejected a requirement t h a t a p risoner show

more than a “de minimis” injury to establish a claim of excessive force because that approach is at odds with its direction in Hudson to “decide excessive force claims based on the nature of the force rat h e r t han the extent of the injury.” Wilkins v. Gaddy , 130 S. Ct. 1175, 1177 (20 10). In Williams v. Bramer , 180 F.3d 699, 703-04, clarified on reh’g , 186 F.3d 633, 634 (5th Cir. 1999), an individual detained by police officers brought an excessive force claim against an officer who allegedly choked him twice, once in
2 Case: 12-30424 Document: 00512016450 Page: 2 Date Filed: 10/11/2012No. 12-30424

the course of a search of the plaintiff’s mouth and once shortly ther e a f ter in response to his complaining about the first choking. The plaintiff’s alleged injuries from each choking were identical: “fleeting dizziness, temporary loss of breath and coughi n g . ” I d

. at 704. Evaluating each instance separately, we determined that the injuries resulting from th e first choking were not constitutionally cognizable because they o c c u rr e d during a search of the plaintiff’s mouth for drugs. Id

. With respect to the second choking, however, the identical injuries were actionable, because the second c h o king “was motivated entirely by malice” and because the officer was not “legitimately exercising force in the performance of his duties as an officer.” Id

. Wilson has alleged that with no provocation, Rheams maliciously applied unnecessary force to him by choking him, resulting in n e ar unconsciousness, and by flinging him out of his wheelchair to the floor. For purposes of Rule 12(b)(6), accepting Wilson’s allegations as true, these allegations are sufficient to state a claim of excessive use of force based on the “nature of the force rather than the extent of the injury.” Wilkins , 130 S. Ct. at 1177; Williams , 180 F.3d at 703-04. The district court erred in dismissing the complaint for failure to state a claim of excessive use of force. Wilson’s motion for leave to proceed IFP on appeal is GRANTED. Because further briefing is not required, t he district court’s judgment is VACATED and the case is REMANDED for further proceedings.

3 Case: 12-30424 Document: 00512016450 Page: 3 Date Filed: 10/11/2012