Summary Calendar GUS LIVINGSTON ELLIOT v. Michael Linnell, in his individual capacity as a Peace Office commissioned by the…

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-40881
Summary Calendar
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
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.
PER CURIAM:*
Gus Elliot brought this 43 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
United States Court of Appeals
Fifth Circuit
F I L E D
March 11, 2008
Charles R. Fulbruge III
Clerk

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No. 07-40881
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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. Kenney 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.

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