United States Court of Appeals

Fifth Circuit

FILED

December 12, 2006

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-41277

MARCUS P. BROWN,

Plaintiff-Appellee,

v.

FRED LIPPARD,

Defendant-Appellant.

Appeal from the United States District Court for the

Southern District of Texas

Before SMITH, BENAVIDES, and PRADO, Circuit Judges.

BENAVIDES, Circuit Judge:

Marcus Brown (“Brown”) alleges that while he was incarcerated,

Correctional Officer Fred Lippard (“Lippard”) used excessive

physical force against him. He brings this 42 U.S.C. § 1983 claim

for compensatory and punitive damages, arguing that Lippard

violated his Eighth Amendment right to be free from cruel and

unusual punishment. Brown previously prevailed on this claim and

was awarded damages in a jury trial, but the district court set

aside that judgment because Brown had not exhausted his
2

administrative remedies. Having exhausted his administrative

remedies, Brown renewed this claim.

Lippard moved for summary judgment, arguing that he was

entitled to qualified immunity, but the motion was denied. He now

appeals, arguing that Brown never showed anything more than a de

minimis injury, and thereby cannot overcome his qualified immunity

protection. We disagree and AFFIRM the district court’s denial of

summary judgment.

I. FACTS

Brown alleges that on September 12, 1998, Lippard came to his

cell under the pretense of escorting him to recreation. As Brown

exited his cell, Lippard grabbed his arm and told him “You don’t

lead me, I lead you.” A brief exchange ensued in which Lippard

indicated Brown’s recreation privileges were denied. Brown,

believing Lippard was set on harassing him, asked to speak with a

superior officer and sat down to wait for one to arrive. 

As Brown sat knelt on one knee, Lippard allegedly struck him

several times in his back, head and shoulders. Lippard also tried

to ratchet his arms—at that point handcuffed behind him—up and over

his head. Lippard issued Brown citations for creating a

disturbance and refusing an order. Both citations were eventually

dismissed. 

After the attack, Brown went immediately to a physician and

complained of knee, hand and shoulder pain. The nurse noted one-
1 The Supreme Court in Hudson was concerned with a de minimis

use of force showing, not a de minimis injury. Nonetheless, this

Circuit has on occasion referred to de minimis injuries, although

only with the caveat that when the force is “repugnant to the

conscience of mankind” the gravity of the injury may be irrelevant.

See Gomez v. Chandler, 163 F.3d 921, 924 n.4 (1999) (“It may also

be arguable that Siglar leaves open the possibility that a physical

injury which is only de minimis may nevertheless suffice for

purposes of the Eighth Amendment . . . if the force used is of the

kind “repugnant to the conscience of manking.”); see also Siglar v.

Hightower, 112 F.3d 191, 193 (1997). While beating a man on the

ground who is handcuffed very well might satisfy a “repugnant to

the conscience test,” we voice no opinion on the ambiguities left

after Gomez and Siglar, since there was more than a de minimis

injury here. 

3

centimeter abrasions on both his left knee and left shoulder, pain

in his right knee, and tenderness around his left thumb. Brown

also alleges that the attack exacerbated his prior back problems

and contributed to chronic tendinitis. Lippard introduced evidence

from Dr. Glenda Adams concluding that Brown’s injuries were minor

since there were “no fractures, sprains, lacerations, or bleeding.”

II. DISCUSSION

On summary judgment and appeal, Lippard argues that Brown’s

injuries are not severe enough to support an excessive force claim.

This Court has never directly held that injuries must reach beyond

some arbitrary threshold to satisfy an excessive force claim,1 as

Lippard assumes. Nonetheless, Brown’s injuries satisfy any such

standard. 

In evaluating excessive force claims, courts may look to the

seriousness of the injury to determine “whether the use of force

could plausibly have been thought necessary, or instead evinced
4

such wantonness with respect to the unjustified infliction of harm

as is tantamount to a knowing willingness that it occur.” Whitley

v. Albers, 475 U.S. 312, 321 (1986). This Circuit has found an

injury insufficient to support an excessive force claim where there

is no physical injury, see, e.g., Harper v. Showers, 174 F.3d 716,

719 (5th Cir. 1999), or where it is extremely minor. See Siglar v.

Hightower, 112 F.3d 191 (5th Cir. 1997) (bruise caused by having

ear twisted considered de minimis). The attack and injuries

described by Brown cannot be likened to a twisted ear.

A more analogous case is Gomez v. Chandler. 163 F.3d 921 (5th

Cir. 1999). After being knocked down and punched repeatedly, the

prisoner suffered “cuts, scrapes, contusions to the face, head, and

body.” Id. at 922. Not only are the injuries sustained here more

akin to those in Gomez, but the alleged attack was similarly not

“applied in a good-faith effort to maintain or restore discipline,

[rather] maliciously and sadistically to cause harm.” Id. at 923.

Lippard repeatedly attempts to minimize Brown’s injuries as

requiring “no more than swabbing with Betadine.” But the Supreme

Court has “put to rest a seriously misguided view that pain

inflicted by an excessive use of force is actionable under the

Eighth Amendment only when coupled with ‘significant injury,’ e.g.,

injury that requires medical attention or leaves permanent marks.”

Id. at 13 (Blackmun, J., concurring). While this particular injury

did require medical attention, Lippard apparently prefers a pre-
5

Hudson standard requiring the complainant to receive serious

medical attention. There is no basis for that position.

Lippard raises two further points that merit attention.

First, he claims that this case is distinguishable from Gomez since

his summary judgment motion was supported by a non-treating

physician’s affidavit concluding that the injuries were de minimis

and not the result of excessive force. The physician made this

conclusion after reviewing the same medical records before us.

While that affidavit is certainly some evidence that Brown’s

injuries are not as severe as he claims, it does not support the

legal conclusion that the undisputed injuries were de minimis.

Second, Lippard asserts that there was no evidence properly

before the district court that his actions were in bad faith, and

therefore that Brown did not overcome the immunity shield. The

evidence that Lippard was acting in bad faith came from both a

fellow officer and an inmate who described Brown’s behavior as

cooperative and unthreatening. But Lippard complains that such

evidence was not in the record on summary judgment, but from the

prior action dismissed for failure to exhaust remedies, and the

judge mistakenly took judicial notice of it. 

Lippard’s argument is off point. The district judge did not

have to credit the testimony of the officer and inmate “for the

truth asserted.” Taylor v. Charter Med. Corp., 162 F.3d 827, 830

(5th Cir. 1998). The judge only had to notice that such testimony
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existed, because the testimony’s very existence raises an issue of

fact sufficient to overcome summary judgment. Especially here,

where Lippard does not so much as allege that his actions were in

response to Brown’s misbehavior. Because the testimony’s existence

was “not subject to reasonable dispute” and “capable of accurate

and ready determination,” FED. R. EVID. 201(b), it was not improper

to take judicial notice of it. 

III. CONCLUSION

The district court’s denial of Lippard’s motion for summary

judgment is AFFIRMED, and we REMAND the case for further

proceedings.