Unpublished Dispositionwalter Travier, Plaintiff-appellant, v. L. Putnam, Inspector; Everett Elkins; Paul Deleeuw;maynard, Sgt.; C/o Hart; C/) Fath, Defendants-appellees,ian Mcdonald, et al., Defendants, 902 F.2d 35 (6th Cir. 1990)

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U.S. Court of Appeals for the Sixth Circuit - 902 F.2d 35 (6th Cir. 1990)

April 24, 1990

Before CORNELIA KENNEDY and KRUPANSKY, Circuit Judges; and BAILEY BROWN, Senior Circuit Judge.


This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and the briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Walter Travier appeals the summary judgment for defendants in this civil rights action filed under 42 U.S.C. § 1983. Travier alleged that the defendant prison officials used unreasonable force against him after he refused to remove his coat to facilitate a pat-down search. Travier alleged that he was refused medical treatment for his resulting injuries. The district court concluded that the defendants involved acted reasonably under the circumstances and granted summary judgment for defendants.

Upon consideration, we hereby vacate the district court's order and remand for further proceedings. We conclude that the defendants did not meet their burden of proving the absence of a genuine issue of material fact concerning the assault which occurred on December 30, 1986. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In addition, we also conclude that plaintiff is properly suing the defendants in their individual capacity for monetary relief because the alleged assault does not fall within the apparent or authorized scope of their official duties. Rice v. Ohio Dep't of Transp., 887 F.2d 716, 719 (6th Cir. 1989).

Accordingly, the judgment of the district court is vacated and the case is remanded for further proceedings. Rule 9(b) (6), Rules of the Sixth Circuit.