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Elliot v. Linnell
United States Court of Appeals, Fifth Circuit.March 11, 2008269 Fed.Appx. 450 (Approx. 3 pages)
Elliot v. Linnell
United States Court of Appeals, Fifth Circuit.March 11, 2008269 Fed.Appx. 450 (Approx. 3 pages)
269 Fed.Appx. 450
This case was not selected for publication in West's Federal Reporter.
See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of App. 5th Cir. Rules 28.7 and 47.5.
United States Court of Appeals, Fifth Circuit.
Gus Livingston ELLIOT, Plaintiff—Appellee
v.
Michael LINNELL, in his individual capacity as a Peace Office commissioned by the University of North Texas; Gregory J. Prickett, in his individual capacity as a Peace Officer commissioned by the University of North Texas, Defendants—Appellants.
No. 07–40881Summary Calendar
March 11, 2008.
Attorneys and Law Firms
*450 Richard Scott Gladden, Denton, TX, for Plaintiff–Appellee.
Seth Byron Dennis, Assistant Attorney General, Office of the Attorney General, Austin, TX, for Defendants–Appellants.
*451 Appeal from the United States District Court for the Eastern District of Texas, USDC No. 4:05–CV–344.
Opinion
PER CURIAM:*
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.
All Citations
269 Fed.Appx. 450Footnotes
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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