IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-41091

MARION R. MOSLEY,

Plaintiff - Appellant

v.

LEAMON E. WHITE,

Defendant - Appellee

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 6:09-cv-00009-LED-JKG

Before KING, STEWART, and OWEN, Circuit Judges.

PER CURIAM:

*

Marion R. Mosley (Mosley), an inmate at the Coffield Unit of the Texas

Department of Criminal Justice (TDCJ), alleged that Sergeant Leamon E. White

(White), an official at the TDCJ, ordered him to face the wall and put his hands

behind his back, and he immediately complied. Mosley claims that, after he

complied, White repeatedly poked him in the face and left eye. White’s conduct

caused Mosley momentary blindness and cuts and abrasions in and around his

left eye. His left eye eventually became infected, swollen, and discolored.

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2010

Lyle W. Cayce

Clerk

 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.

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Mosley proceeded in forma pauperis and filed a pro se suit under 42 U.S.C.

§ 1983. White subsequently filed a motion for summary judgment arguing,

among other things, that he was entitled to qualified immunity in his individual

capacity and dismissal under 42 U.S.C. § 1997e(e). The district court granted

summary judgment in White’s favor. Mosley appealed. We AFFIRM.

I.

On October 14, 2008, as Mosley was walking down a hallway, Donathan

Bernard Chandler (Chandler), another inmate, asked him a question. Because

inmates are not permitted to talk in the hallway, an officer yelled at him and

said “get your ass on down the hallway.” Mosley was not sure that the officer,

White, was speaking to him. So, he turned and looked in White’s direction. At

that point, White stated “Yeah, bastard. I’m talking to you.” When Mosley asked

White to stop using vulgar language, White ordered Mosley to face the wall and

put his hands behind his back, and then threatened Mosley with a chemical

agent. Mosley complied with the order and kept his hands behind his back, but

White proceeded to call Mosley a “bitch” and repeatedly poked him in the face

and left eye. As White poked Mosley in the face and eye, White’s nail scraped

across Mosley’s eye and caused him momentary blindness and abrasions and

cuts in and around his left eye.

Thirty minutes later, Mosley went to the medical department and

complained of being poked in the left eye with a finger. The officer working the

desk asked Mosley to complete a walk-in sick call request. A nurse examined

the abrasions on his face and was in the process of treating his injuries when she

asked Mosley how he had been injured. After he told her that White injured

him, she refused to treat him until the medical department received an accident

or use of force report. Within forty-eight hours, Mosley’s abrasions became

infected and remained so for six days. Discouraged by the nurse’s refusal to

treat him, Mosley elected not to seek further medical care. He was later given

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a tube of antibiotic cream to apply to his eye by Louis Ray Green (Green),

another inmate, who noticed that the left side of Mosley’s face and his left eye

were swollen and discolored.

On the day of the incident, Mosley submitted and filed his first “Offender

Grievance Form,” complaining about White’s actions, but it was later returned

because the TDCJ Office of the Inspector General (OIG) determined that there

was insufficient evidence to support his claim because “Sgt. White denies

verbally abusing you and states that at no time did he poke you in the face or

eyes with his finger.” Mosley’s listed witness, Chandler, was never interviewed

during the investigation. Also on October 14, 2008, Officer Melinda Thompson

(Thompson), who witnessed the incident, filed an offense report claiming that

after she ordered the offender to get up against the wall, he refused to do so.

Thompson stated that because Mosley did not listen, she and White handcuffed

Mosley and escorted him from the hallway.

On October 16, 2008, White prepared an investigative report. In the

report, White states that he never touched Mosley and confirmed Thompson’s

offense report statements. Subsequently, a disciplinary case was filed against

Mosley for using vulgar language. Mosley was found guilty on October 30, 2008

and lost 30 days of commissary privileges and received a 30-day cell restriction.

On November 17, 2008, Mosley filed another grievance form, appealing the

decision of his first grievance, complaining about the lack of investigation into

his original grievance complaint, and threatening to file suit in federal court if

his claim was not better investigated. It was also returned due to insufficient

evidence to support the claim.

On January 5, 2009, Mosley filed suit against White under § 1983, alleging

that White used excessive force against him in violation of the Eighth

Amendment and seeking nominal, compensatory, and punitive damages. After

Mosley filed suit, his case was referred to a magistrate judge. The magistrate

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judge conducted a Spears hearing and recommended that all of Mosley’s claims

1

be dismissed, except his “excessive use of force” claim. The district court adopted

her report and recommendation. White, subsequently, answered Mosley’s

complaint and filed a motion for summary judgment, arguing that he was

entitled to qualified immunity in his individual capacity because Mosley could

not show that an excessive force incident ever occurred and that Mosley’s alleged

injuries failed to satisfy 42 U.S.C. § 1997e(e)’s physical injury requirement.

In support of his motion for summary judgment, White submitted Mosley’s

mental health records from October 2008; Mosley’s grievance forms; Thompson’s

offense report; an affidavit from an OIG representative stating that the OIG did

not have any case information regarding the October 14th incident; an affidavit

from a clerk from TDCJ’s Emergency Action Center (EAC), stating that Mosley

received no treatment from EAC; an affidavit from a TDCJ representative

stating that Mosley did not file a use of force report; an affidavit from Thompson

reiterating the statements made in her offense report; and an affidavit from a

physician stating that after he reviewed Mosley’s medical records, he could find

no evidence of any injury.

With his response to White’s motion for summary judgment, Mosley

submitted his unsworn affidavit and four unsworn affidavits from his co-inmates

pursuant to 28 U.S.C. § 1746. He submitted his affidavit attesting to the facts

2

Pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the district court

1

conducts a hearing to remedy inadequacy in a prisoner’s pleadings. Brewster v. Dretke, 587

F.3d 764, 767 (5th Cir. 2009). Traditionally, a Spears hearing and the use of a questionnaire

help the court “bring into focus the factual and legal bases of prisoners’ claims.” Id. (citation

and internal quotation marks omitted). 

 Section 1746 states:

2

Wherever, under any law of the United States or under any rule, regulation,

order, or requirement made pursuant to law, any matter is required or

permitted to be supported, evidenced, established, or proved by the sworn

declaration, verification, certificate, statement, oath, or affidavit, in writing of

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of his case; Chandler’s affidavit, who was present during the incident, confirming

Mosley’s recitation of the facts; Green’s affidavit stating that he noticed that the

left side of Mosley’s face and his left eye were swollen and discolored and offered

Mosley antibiotic cream; an affidavit from Donald Ray Briscoe, stating that

White previously assaulted him; and an affidavit from Richard V. Coston,

stating that White previously assaulted him also. Additionally, Mosley

submitted his grievance forms.

After reviewing the evidence, the magistrate judge granted White’s motion

for summary judgment on qualified immunity grounds. The district court,

subsequently, adopted the magistrate judge’s report and recommendation.

3

Mosley appealed. For the following reasons, we AFFIRM the district court’s

judgment.

the person making the same (other than a deposition, or an oath of office, or an

oath required to be taken before a specified official other than a notary public),

such matter may, with like force and effect, be supported, evidenced,

established, or proved by the unsworn declaration, certificate, verification, or

statement, in writing of such person which is subscribed by him, as true under

penalty of perjury, and dated, in substantially the following form:

(1) If executed without the United States: “I declare (or certify,

verify, or state) under penalty of perjury under the laws of the

United States of America that the foregoing is true and correct.

Executed on (date). 

(Signature)”.

(2) If executed within the United States, its territories,

possessions, or commonwealths: “I declare (or certify, verify, or

state) under penalty of perjury that the foregoing is true and

correct. Executed on (date).

(Signature)”.

Because the district court adopted the magistrate judge’s reports and 3

recommendations in full, our future references will be to the district court.

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II.

We review a grant of summary judgment de novo, applying the same

standard as does a district court. BellSouth Telecoms., Inc. v. Johnson Bros.

Corp., 106 F.3d 119, 122 (5th Cir. 1997). Summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A

movant can make the requisite showing by “citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations . . . admissions, interrogatory

answers, or other materials.” Id. 56(c)(1). The movant can also make the

requisite showing by “showing that the materials cited do not establish the

absence or presence of a genuine dispute, or that an adverse party cannot

produce admissible evidence to support the fact.” Id. 56(c)(2).

Typically, the party moving for summary judgment must demonstrate the

absence of a genuine issue of material fact.” Little v. Liquid Air Corp., 37 F.3d

1069, 1075 (5th Cir. 1994) (en banc) (internal quotation marks and citation

omitted). However, “[a] qualified immunity defense to § 1983 liability alters the

usual summary judgment burden of proof; once an official pleads the defense of

qualified immunity in a § 1983 action, the burden then shifts to the plaintiff.”

Brown v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010); see also Michalik v.

Hermann, 422 F.3d 252, 262 (5th Cir. 2005). Nonetheless, we construe all of the

evidence and reasonable inferences deduced therefrom in the light most

favorable to the nonmoving party. Xtreme Lashes, LLC v. Xtended Beauty, Inc.,

576 F.3d 221, 226 (5th Cir. 2009); see also Brown, 623 F.3d at 253 (“The plaintiff

bears the burden of negating qualified immunity, . . . but all inferences are

drawn in his favor.” (citation omitted)).

III.

On appeal, we consider whether the district court erred when it dismissed

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Mosley’s excessive force claim pursuant to Heck v. Humphrey, 512 U.S. 477

(1994), and Edwards v. Balisok, 520 U.S. 641 (1997). We also address the

district court’s alternative holding that Mosley’s claims should be dismissed

because White was entitled to qualified immunity.

A.

The district court sua sponte determined that, because Mosley received a

disciplinary case and was found guilty, his § 1983 excessive force claim should

be dismissed with prejudice pursuant to the Supreme Court’s decisions in Heck

and Edwards. We disagree.

Under Heck, a plaintiff in a § 1983 action may not recover damages for

“allegedly unconstitutional conviction or imprisonment, or for other harm caused

by actions whose unlawfulness would render a conviction or sentence invalid,”

unless he “prove[s] that the conviction or sentence has been reversed on direct

appeal, expunged by executive order, declared invalid by a state tribunal

authorized to make such determination, or called into question by a federal

court’s issuance of a writ of habeas corpus.” 512 U.S. at 486–87. In Edwards,

the prisoner sought § 1983 damages and equitable relief for a procedural defect

in a prison’s administrative process. 520 U.S. at 643. The Court applied Heck

because the administrative action taken against the plaintiff could affect credits

toward release based on good time served. Id. at 646–48; see also Clarke v.

Stalder, 154 F.3d 186, 189 (5th Cir. 1998) (en banc) (applying Heck to a

challenge to disciplinary conviction that resulted in the loss of good time credits).

In Muhammad v. Close, 540 U.S. 749, 751 (2004), the Supreme Court

reiterated that Heck is not “implicated by a prisoner’s challenge that threatens

no consequence for his [underlying] conviction or the duration of his sentence.”

Muhammad had not lost any good time credits in conjunction with his

disciplinary conviction. Id. at 752–53; see also Mahogany v. Stalder, 242 F.

App’x 261, 263 (5th Cir. 2007) (holding claim for damages arising from failure

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to receive written statement of evidence relied on in disciplinary proceeding was

not barred by Heck and Edward because such damages go to the deprivation of

civil rights, not the deprivation of good time credits).

Like the prisoner in Muhammad, Mosley does not challenge the length of

his confinement, seek the restoration of good time credits, or seek the

expungement of a disciplinary conviction that resulted in the loss of good time

credit. Success in the instant action would not affect the validity of Mosley’s

underlying conviction or the duration of his sentence. See Muhammad, 540 U.S.

at 751 & n.1 (noting that “[t]he assumption is that the incarceration that

matters under Heck is the incarceration ordered by the original judgment of

conviction, not special disciplinary confinement for infraction of prison rules.”).

Therefore, the district court erred in determining that his excessive force claim

was barred by Heck and Edwards. See Muhammad, 540 U.S. at 754–55. Now,

we turn to the district court’s alternative holding that Mosley’s claims should be

dismissed because White was entitled to qualified immunity.

B.

“Qualified immunity protects government officials from liability for civil

damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.” Lytle

v. Bexar County, Tex., 560 F.3d 404, 409 (5th Cir. 2009) (citation and internal

quotation marks omitted). Evaluating qualified immunity is a two-step process.

First, we determine whether the plaintiff has alleged a violation of a clearly

established constitutional or statutory right. See Siegert v. Gilley, 500 U.S. 226,

231–32 (1991). If the court determines that there was a constitutional violation,

the court moves to the second step, which involves “determining whether the law

was sufficiently clear that a reasonable officer would have known that his

conduct violated the constitution. Lytle, 560 F.3d at 410. As previously

explained, qualified immunity in the summary judgment context shifts the

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burden of proof to the plaintiff. Brown, 623 F.3d at 253. Thus, in order to rebut

White’s qualified immunity defense, Mosley must establish that (1) the official’s

allegedly wrongful conduct was excessive force in violation of the Eighth

Amendment and (2) a genuine issues of material fact exist regarding the

reasonableness of the official’s conduct. Id. We conclude that Mosley has not

provided sufficient evidence that White’s conduct was in violation of the Eighth

Amendment, and thus, the district court did not err in granting White’s motion

for summary judgment.

The well-established rule is that the unnecessary and wanton infliction of

pain constitutes cruel and unusual punishment forbidden by the Eighth

Amendment. Hudson v. McMillian, 503 U.S. 1, 5 (1992). In the context of an

allegation of the use of excessive force by a prison official, the Supreme Court

explained that “ the core judicial inquiry is . . . whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and sadistically

to cause harm.” Hudson, 503 U.S. at 9. To this end, an excessive force claim has

both a subjective and an objective component. Id. at 8–9. The subjective

component requires the plaintiff to establish that the defendant acted

maliciously and sadistically in an “unnecessary and wanton infliction of pain.”

Id. at 8. To make this determination, a court should consider the need for the

application of force; the relationship between the need and the amount of force

used; the threat reasonably perceived by the responsible officials; and any efforts

made to temper the severity of a forceful response. Id. at 6.

The objective component requires the plaintiffto establish that the alleged

wrongdoing was objectively “harmful enough” to establish a constitutional

violation. Id. at 8. Thus, a party’s claim must allege more than a de minimis

use of physical force in order to state a prima facie case of an Eighth Amendment

violation. Eason v. Holt, 73 F.3d 600, 604 n.24 (5th Cir. 1996). The de minimis

use of physical force is excluded from “constitutional recognition,” unless it is of

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a sort “repugnant to the conscience of mankind.” Hudson, 503 U.S. at 10

(citations and internal quotation marks omitted). Furthermore, it is wellestablished in this Circuit that, “to support an Eighth Amendment excessive

force claim[,] a prisoner must have suffered from the excessive force more than

de minimis physical injury, but there is no categorical requirement that the

physical injury be significant, serious, or more than minor.” Gomez v. Chandler,

163 F.3d 921, 924 (5th Cir. 1999).

In sum, courts considering a prisoner’s excessive force claim must

determine (1) whether the defendant acted maliciously and sadistically in an

“unnecessary and wanton infliction of pain” and (2) whether the alleged

wrongdoing was objectively “harmful enough” to establish a constitutional

violation. Id. If a party fails to meet either of these requirements, there is not

a valid Eighth Amendment claim. Eason, 73 F.3d at 601–02. Here, even

assuming that Mosley has established the subjective component of the Eighth

Amendment analysis, he has not established the objective part of the inquiry.

Accordingly, our analysis centers on the objective component—whether the

plaintiff established that the alleged wrongdoing was objectively “harmful

enough” to constitute a constitutional violation.” Hudson, 503 U.S. at 9.

Analyzing the objective component of Mosley’s Eighth Amendment claim,

the district court determined that Mosley’s failed to establish that his injuries

were constitutionally cognizable. In reaching its determination, the district

court relied on our decisions in Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.

1997) and Gomez.

In Siglar, the prisoner alleged that a guard stopped him in the hall of his

prison unit while returning from breakfast. 112 F.3d at 193. The guard directed

the prisoner to face the wall while she searched him. Id. She found a biscuit in

his jacket pocket and called for backup. Id. The backup officer then, “[w]ithout

provocation, . . . twisted Siglar’s arm behind his back and twisted Siglar’s ear.”

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Id. “Siglar’s ear was bruised and sore for three days but he did not seek or

receive medical treatment for any physical injury resulting from the incident.”

Id. There was no evidence in the record that Siglar sought or received medical

treatment for his injuries or that he suffered from a long term injury. Id. at 193.

We affirmed the dismissal of his complaint as frivolous, concluding that his

bruised ear, lasting for three days, was de minimis and that it was not a

“physical injury” under § 1997e(e). Id. at 193–94.

By contrast, in Gomez, a prisoner alleged that he was knocked down,

without provocation, that his head struck the concrete floor, his face was then

scraped against the floor, he was punched in the face by two officers using their

fists for about five minutes, and a third officer then kicked him in the face and

head, after which one of the two officers continued to hit him with his fist. 163

F.3d at 924–25. The defendant’s summary judgment evidence included an

“Inmate use of force injury report” and a medical report that the prisoner was

injured and treated two days after the incident for abrasions. Id. at 922. The

court noted that its precedent had no categorical requirement that to state an

Eighth Amendment claim the physical injury be significant, serious, or more

than minor. Id. at 924. The court declined to find that the injuries, “‘cuts,

scrapes, contusions to the face, head, and body,’” were no more than de minimis

as a matter of law and vacated the district court’s grant of summary judgment.

Id. at 924–25.

Arguably the injuries in this case—momentary blindness, cuts and

abrasions in and around the eye, and an infected eye—fall somewhere between

the injuries at issue in Siglar and the injuries at issue in Gomez. However,

Mosley has not provided sufficient evidence that his injuries were

constitutionally cognizable such that his claims would survive summary

judgment. For example, in Gomez the plaintiff provided the court with an

inmate use of force report, as well as a medical report indicating that he was

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injured and was treated for those injuries. Here, the record is devoid of such

evidence. In response to White’s motion for summary judgment, as previously

explained, Mosley provided the district court with his affidavit and those of his

co-inmates and his grievance reports. Although we recognize that the affidavits

and reports constitute valid summary judgment evidence, FED. R. CIV. P.

56(c)(4), we have explained that without more, “conclusory allegations,

speculation, and unsubstantiated assertions are inadequate to satisfy the

nonmovant’s burden” and defeat a motion for summary judgment. Douglass v.

United Servs. Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996). As Mosley has not

met his evidentiary burden that his injuries were objectively “harmful enough”

to constitute a constitutional violation, he fails to establish that White’s conduct

constitutes a violation of the Eighth Amendment. Thus, the district court did

not err in granting White’s motion for summary judgment. Eason, 73 F.3d at

601–02.

IV.

Accordingly, we AFFIRM the district court’s judgment, dismissing

Mosley’s claim as White is entitled to qualified immunity.

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