IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 97-10407 (Summary Calendar)

ERIC LYNN CHATMAN,

Plaintiff-Appellee,

versus

WICHITA FALLS POLICE DEPARTMENT ET AL.,

Defendants,

ALLEN KILLINGSWORTH,

Defendant-Appellant.

- - - - - - - - - - Appeal from the United States District Court for the Northern District of Texas (USDC No. 7:95-CV-85) - - - - - - - - - -

January 14, 1998 Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Police Officer Allen Killingsworth appeals the denial of his

motion for summary judgment based on qualified immunity. The

denial order is appealable because it turns on a question of law,

not on the existence of genuine issues of disputed facts. Mitchell

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. v. Forsyth,

(1985); Nerren v. Livingston Police

Dep’t,

(5th Cir. 1996).

Eric Lynn Chatman sued under

alleging that

his Fourth Amendment rights were violated when Killingsworth beat

him on the head with a flashlight using excessive force. Even

though Chatman failed timely to answer Killingsworth’s requests for

admissions, Chatman’s admissions were neither amended nor

withdrawn. The plain language of Rule 36 thus mandates that those

admissions be deemed admitted and treated as conclusively

established. Fed. R. Civ. P. 36(a),(b); See American Auto. Ass’n.

v. AAA Legal Clinic of Jefferson Crooke,

(5th

Cir. 1991). Admissions made under Rule 36, even default

admissions, can serve as the factual predicate for summary

judgment. Dukes v. South Carolina Ins. Co.,

(5th Cir. 1985).

To prevail on an excessive-force claim, a plaintiff must show

that he was injured, that the injury resulted directly and only

from a use of force that was clearly excessive to the need, and the

excessiveness was objectively unreasonable in light of the facts

and circumstances. Ikerd v. Blair,

(5th Cir.

1996); Harper v. Harris County,

(5th Cir. 1994).

According to Chatman’s admissions, he suffered no damages by any

act of Killingsworth’s, he resisted arrest, and he hit the police

officers during his arrest. More significantly, he agrees that the

officers used only the minimal amount of force necessary to make

2 the arrest. Thus Killingsworth has shown through these admissions

that Chatman suffered no compensable injury and that

Killingsworth’s use of force was not clearly excessive to the need,

thereby negating two elements of Chatman’s claim. As

Killingsworth’s actions did not violate the Fourth Amendment, he is

protected by qualified immunity. The district court erred by

failing to treat Chatman’s admissions as conclusively established

and, as a result, by denying Killingsworth’s motion for summary

judgment. See Little v. Liquid Air Corp.,

(5th

Cir. 1994) (en banc)(Rule 56 requires entry of summary judgment if

the movant satisfies the requirements of the rule). We are

compelled, therefore, to reverse and remand to the district court

for entry of a judgment dismissing Chatman’s claims against

Killingsworth and for further proceedings consistent with this

opinion.

REVERSED and REMANDED.

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