Anderson v. Payne, et al, No. 06-60874 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 06-60874 Summary Calendar January 2, 2008 Charles R. Fulbruge III Clerk JOHN ANDERSON Plaintiff-Appellant v. GEORGE PAYNE; GASTON RILEY; PHIL TAYLOR; DAMON REESE; T P WILLIS; PHILLIP COMPTON; MICHAEL NEILL Defendants-Appellees Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:04-CV-542 Before JOLLY, PRADO and SOUTHWICK, Circuit Judges. PER CURIAM:* John Anderson, Mississippi prisoner # 279672, appeals the district court s dismissal of his 42 U.S.C. § 1983 complaint following a bench trial. Anderson alleged that he was the victim of constitutionally excessive force at the hands of correctional officer Thomas Wills. We review findings of fact made following a bench trial for clear error and legal conclusions de novo. Baldwin v. Stalder, 137 F.3d 836, 839 (5th Cir. 1998). * 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 06-60874 A review of the record, including the trial transcript, establishes that the district court s credibility findings are supported by the evidence. Additionally, the evidence supports the conclusion that although Anderson sustained more than a de minimis physical injury, the need for the use of force was legitimate, the threat perceived by Wills was reasonable given Anderson s noncompliance, and Wills adequately tempered the severity of the use of force. See id. at 838. Anderson has not shown that the district court s findings on his claims of excessive force were clearly erroneous. See Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000). AFFIRMED; MOTION TO EXPEDITE APPEAL DENIED. 2

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