791 F.2d 97 (8th Cir. 1986), 85-1941, Burton v. Livingston

Docket Nº:85-1941.
Citation:791 F.2d 97
Party Name:Willie BURTON, Jr., Appellant, v. A. LIVINGSTON, Appellee.
Case Date:May 08, 1986
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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791 F.2d 97 (8th Cir. 1986)

Willie BURTON, Jr., Appellant,


A. LIVINGSTON, Appellee.

No. 85-1941.

United States Court of Appeals, Eighth Circuit

May 8, 1986

Submitted Jan. 14, 1986.

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Thomas L. Barron of Little Rock, Ark., for appellant.

Jerry E. Rose, Asst. Atty. Gen., Little Rock, Ark., for appellee.

Before HEANEY, ARNOLD, and WOLLMAN, Circuit Judges.

ARNOLD, Circuit Judge.

Willie Burton, Jr., an inmate at the Tucker Maximum Security Unit of the Arkansas Department of Correction, appeals from the dismissal of his 42 U.S.C. Sec. 1983 complaint against Sgt. A. Livingston, a guard at the Cummins Unit of the Arkansas Department of Correction.

Mr. Burton alleged in his complaint that on 12 June 1984 he was in attendance at the federal courthouse in Pine Bluff, Arkansas, for a hearing on a complaint against guards at the Cummins Unit. He was accompanied to that hearing by Mr. Livingston and at least one other guard. Mr. Burton's handwritten pro se complaint alleged that after his appearance in court

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he was taken to the "holding tank" in the courthouse. Then:

Livington had continued harassing me pointing at his revolver pistol as threats; he then pull his revolver, thumb cocked it and stated, ["] nigger run so I can blow your Goddamn brains out, I want you to run so I'll be justified ["]; then another prison guard stepped between us, and move me to the opposite side of him from defendant Livington; then just out side the Court Building, as we were approaching the transporting van, def. Livington drew his pistol 357 Magnum and stated ["] nigger run, I want you to run ["], where he tried his best to scare me into running where he could shoot me in my back and say I tried to escape; I was then placed on the van and transported back to Cummins Prison Unit ... [sic]

Complaint at 3. Mr. Burton's complaint asserted that the alleged conduct of Sgt. Livingston violated the Eighth Amendment prohibition on cruel and unusual punishment and the Fourteenth Amendment Due Process and Equal Protection Clauses. He requested damages and injunctive relief. The District Court dismissed Mr. Burton's complaint sua sponte for failure to state a claim for which relief may be granted. The Court stated that " '[m]ere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations.' " Burton v. Livingston, No. PB-C-85-289, slip op. at 2 (E.D.Ark. July 19, 1985), quoting Coyle v. Hughs, 436 F.Supp. 591, 593 (W.D.Okla.1977). We reverse. On the facts alleged in Mr. Burton's complaint, he has stated a claim which is entitled to be heard.

As a general rule, the federal civil-rights remedies available to a person under 42 U.S.C. Sec. 1983 are not so broad as those available under state law, common or...

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