Opinion
No. 07-40881 Summary Calendar.
March 11, 2008.
Richard Scott Gladden, Denton, TX, for Plaintiff-Appellee.
Seth Byron Dennis, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendants-Appellants.
Appeal from the United States District Court for the Eastern District of Texas, USDC No. 4:05-CV-344.
Before REAVLEY, BENAVIDES, and CLEMENT, Circuit Judges.
Gus Elliot brought this 42 U.S.C. § 1983 action against Officer Michael Linnell and Sargent Gregory Prickett, alleging that they violated his Fourth Amendment rights. Livingston contended that Linnell used excessive force in arresting him and that Prickett did nothing to stop it. The officers moved for summary judgment, arguing that qualified immunity shielded them from suit. The district court denied the motion, and the officers filed this interlocutory appeal of that denial.
1. Linnell contends that the district court erred by its legal decision in denying that all of the evidence entitles him to qualified immunity. This court has jurisdiction to entertain such a challenge. Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc). Linnell's argument, however, fails on the merits. The district court determined that whether Elliot resisted arrest and how his head collided with Linnell's were both disputed material facts. Those facts are material because they bear on whether Linnell's response of pushing Elliot's face into his squad car was "objectively reasonable" given the facts and circumstances he faced and under existing law. See Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003).
2. As for Prickett, the district court treated him as a participant in the same conduct as that of Linnell. What is said above then applies to Prickett. If the evidence should prove that Prickett was only a bystander, he would be liable only if he did "not take reasonable measures to protect" Elliott from Linnell, if Linnell used excessive force. Hale v. Townley, 45 F.3d 914, 919 (5th Cir. 1995).
AFFIRMED.