### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH CIRCUIT

No. 11-10143 Summary Calendar

JAY ANTHONY NOTTINGHAM, Plaintiff-Appellant

v. JOEL FINSTERWALD, Sheriff of Wheeler County; JULIAN TORREZ, Deputy Sheriff of Wheeler County; JON BURRELL, Deputy Sheriff of Wheeler County; FNU STOKES, Deputy Sheriff of Wheeler County; CARRIE GAINES, Jail Administrator of Wheeler County; WHEELER COUNTY, TEXAS, Defendants-Appellees

Appeal from the United States District Court for the Northern District of Texas USDC No. 2:09-CV-250

Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges. PER CURIAM: * Jay Anthony Nottingham, Texas prisoner # 1490726, appeals the district court’s summary judgment dismissal of his 42 U.S.C. § 1983 complaint against Joel Finsterwald, Sheriff of Wheeler County, Texas; Julian Torrez, Jon Burrell, and FNU Stokes, Dep u ty S heriffs of Wheeler County; Carrie Gaines, Jail Administrator of Wheeler County; and Wheeler County, Texas. He claims that 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 Decem ber 2 2, 2 011 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop 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 TH C IR

. R. 47.5 .4. Case: 11-10143 Document: 00511705338 Page: 1 Date Filed: 12/22/2011No. 11-10143

Finste rw al d , Torrez, Burrell, and Stokes used excessive force in executing an arrest warrant and Gaines denied him medical treatment. Nottingham’s motion to supplement the record on appe al with evidence that hi s former counsel failed to present to the district court is DENIED. See Gibson v. Blackburn , 744 F.2d 403, 40 5 n . 3 ( 5th Cir. 1984); United States v. Smit h , 4 9 3 F

. 2d 906, 907 & n.1 (5th Cir. 1974). We have considered only the evidence that was before the district court in reviewing the summary judgment ruling. Nottingham presented sufficient evidence to raise a genuine i s s ue of material fact regarding whether Finsterwald, Torrez, Burrell, and Stokes used excessive force after he was handcuffed. His medical records documented black eyes, a laceration on the neck, and soft tissue swelling on the left wrist and hand, which are consistent with his declaration that the Defendants struck his face, neck, and body. Nottingham declared that all of the defendants he named in his excessive force c l ai m c aused his injuries by striking him after he was handcuffed. Therefore, there was a genu i n e i s sue of material fact regarding whether and which Defendants struck Nottingham and whether he r e c e iv ed these injuries before or after he was handcuffed. See Bush v. Strain , 513 F.3d 492, 501 (5th Cir. 2008). Under Nottingham’s version of events, the Defendants would not have been justified in striking him after he was handcuffed as there is no evidence that he resisted at th at time. Therefore, there was a genuine issue of material fact regarding whether the Defendants’ use o f f o r ce of was excessive and objectively unreasonable. See Peterson v. City of Fort Worth , 588 F.3d 838, 846-47 (5th Cir. 2009); Bush , 513 F.3d at 502; Williams v. Bramer , 180 F.3d 699, 704 (5th Cir. 1999). The di s tri ct court erred by granting summary judgment on the excessive force claim in favor of Finsterwald, Torrez, Burrell, and Stokes. The Defendants’ argument that the judgment on the excessive force claim may be affirmed for the alternative reason th at N o ttingham failed to allege a 2 Case: 11-10143 Document: 00511705338 Page: 2 Date Filed: 12/22/2011No. 11-10143

Fourth Am e n d m ent violation in his complaint is unavailing. Nottingham’s allegation that the Defendant s u s ed excessive force in the course of an arrest implicated the Fourth Amendment’s gu ar a ntee against unreasonable seizure and thus stated a plausible claim for relief. Se e G rah a m v. Connor , 490 U.S. 386, 394-95 (1989); Gentilello v. Rege , 627 F.3d 540, 544 (5th Cir. 201 0). Nottingham has aban d oned the excessive force claim against Wheeler County. See Brinkmann v. Dall. Cnty. Deputy Sheriff Abner , 813 F.2d 744, 748 (5th Cir. 1987). The district co u rt did not err by granting summary judgment in favor of Gaines on Nottingham’s claim for denial of medical tr eatment because Nottingham presented no evidence that Gaines was aware of a substantial risk of harm. See Hare v. City of Corinth , 74 F.3d 633, 650 (5th Cir. 1996) (en banc). Because there was no underlying constitutional violation, the district court also did not err by granting summary judgment in favor of Wheeler County on this claim. See Becerra v. Asher , 105 F.3d 1042, 1048 (5th Cir. 1 997). Nottingham’s complaint that his former counsel mishandled his case does not constitute a basis upon which to invalidate the district court’s judgment because the constitutional right to effective assistance of counsel does not apply in a civil case. See Sanchez v. U. S

. P o stal Serv. , 785 F.2d 1236, 1237 (5th Cir. 1986).The judgment of the district court is AFFIRMED IN PART and VACATED IN PART, and the case is REMANDED for further proceedings.

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