634 F.2d 263 (5th Cir. 1981), 80-3502, Shillingford v. Holmes

Docket Nº:80-3502
Citation:634 F.2d 263
Party Name:Charles V. SHILLINGFORD, Plaintiff-Appellant, v. Van E. HOLMES, etc., et al., Defendants-Appellees.
Case Date:January 15, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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634 F.2d 263 (5th Cir. 1981)

Charles V. SHILLINGFORD, Plaintiff-Appellant,

v.

Van E. HOLMES, etc., et al., Defendants-Appellees.

No. 80-3502

Unit A

United States Court of Appeals, Fifth Circuit

January 15, 1981

Page 264

        D. Douglas Howard, Jr., New Orleans, La., for plaintiff-appellant.

        Van E. Holmes, pro se.

        Appeal from the United States District Court for the Eastern District of Louisiana.

        Before GEE, RUBIN and RANDALL, Circuit Judges.

        ALVIN B. RUBIN, Circuit Judge.

        Because 42 U.S.C. § 1983 is not a general tort statute but imposes liability only for rights secured by the Constitution and laws of the United States, it does not grant a cause of action for every injury wrongfully inflicted by a state officer. We here consider the distinction between those personal injuries for which redress is allowable under Section 1983 and those, however wrongful, for which a remedy must be sought under state tort law.

        A group of four or five New Orleans policemen was engaged in apprehending a boy on the street during a Mardi Gras parade. One of the policemen, Mr. Holmes, saw Mr. Shillingford, a tourist, photographing the incident. Shillingford was holding the camera to his face. Holmes struck the camera and Shillingford with his nightstick, destroying the camera, smashing it into Shillingford's face and lacerating his forehead. Mr. Shillingford was not involved in the arrest incident and did not interfere with the police in any fashion.

        Seeking compensatory and punitive damages, Shillingford brought this action against the policeman alleging that the officer, while acting under color of state law, deprived him of federal constitutional rights, violating 42 U.S.C. § 1983. The district

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court found that the policeman's conduct was wholly inappropriate and that the defendant had been suspended from the police force for a period of days. However, the court held that the blow lacked the brutal force necessary to engender a constitutional deprivation. Finding that the policeman's actions did constitute a legal violation of constitutional dimension, we reverse the judgment of the district court and remand for a determination of damages.

        "The first inquiry in any § 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' .... Section 1983 imposes liability for violations of rights...

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