Hull v. Ford

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 25, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-40777
Summary Calendar
DONALD WAYNE HULL,
Plaintiff-Appellee,
versus
R. FORD; Etc.; ET AL.,
Defendants,
MR. BOLECH, Corrections Officer III, Garza West Unit,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:05-CV-43
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Before JOLLY, GARZA, and CLEMENT, Circuit Judges.
PER CURIAM:*
Ben Bolech appeals from the district court’s denial of his
motion for summary judgment on the grounds of qualified immunity.
Ben Bolech filed the motion in response to a 42 U.S.C. § 1983
complaint filed by Donald Wayne Hull when he was Texas prisoner
# 623637.

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No. 06-40777
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In his complaint alleging excessive use of force, Hull
stated that Bolech stabbed him three times in the right leg with
an ink pen and that he sustained three lacerations to his leg as
a result of Bolech’s actions. The district court denied Bolech’s
motion for summary judgment on the ground that a genuine issue of
material fact exists regarding the need and amount of force used
by Bolech. Bolech does not contest the district court’s finding
in this regard. Rather, he argues that he was entitled to
qualified immunity because Hull’s injuries are de minimus.
A showing of some type of injury, more than de minimus, is
necessary to assert an excessive force claim. Williams v.
Bramer, 180 F.3d 699, 703 (5th Cir. 1999). In order to determine
whether injuries caused by excessive force are de minimus, the
context in which the force was used must be examined. Id.
“‘[T]he amount of injury necessary to satisfy our requirement of
‘some injury’ and establish a constitutional violation is
directly related to the amount of force that is constitutionally
permissible under the circumstances.’” Id. at 703-04 (quoting
Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)). Because a
genuine issue of material fact exists regarding the need and
amount of force used by Bolech, the injuries cannot be determined
to be de minimus simply by evaluating the physical nature of the
injury. Accordingly, the judgment of the district court is
AFFIRMED.

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