901 F.2d 1276 (5th Cir. 1990), 89-1562, Wisniewski v. Kennard

Docket Nº:89-1562.
Citation:901 F.2d 1276
Party Name:Michael F. WISNIEWSKI, Plaintiff-Appellant, v. Johnny KENNARD, et al., Defendants-Appellees.
Case Date:May 29, 1990
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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901 F.2d 1276 (5th Cir. 1990)

Michael F. WISNIEWSKI, Plaintiff-Appellant,

v.

Johnny KENNARD, et al., Defendants-Appellees.

No. 89-1562.

United States Court of Appeals, Fifth Circuit

May 29, 1990

Robert Clary, Johnson, Bromberg & Leeds, Dallas, Tex. (court appointed), for plaintiff-appellant.

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Peter L. Harlan, Asst. Dist. Atty., John Vance, Dist. Atty., Dallas, Tex., for defendants-appellees.

Appeal From the United States District Court for the Northern District of Texas.

Before GOLDBERG, REAVLEY and HIGGINBOTHAM Circuit Judges.

PER CURIAM:

This is an appeal from a grant of summary judgment in a damages suit filed by a state prisoner under 42 U.S.C. Sec. 1983 against a deputy sheriff and the Dallas County Sheriff's Office. Wisniewski claims that upon his apprehension following an escape, the deputy sheriff handcuffed him, then placed his revolver in Wisniewski's mouth, threatened to blow his head off, and twice punched him in the stomach. He argues that as a result he was frightened and has suffered bad dreams.

The district court granted summary judgment for the deputy and the Sheriff's Office. There is some confusion as to whether Wisniewski's version of the facts was properly before the district court, but the district court did not rest its ruling on that point and neither do we. Wisniewski urges that this case presents the issue pretermitted in Johnson v. Morel, 876 F.2d 477, 480 (5th Cir.1989) (en banc). In Morel, we insisted upon proof of a significant injury as a threshold for the recovery of money damages under 42 U.S.C. Sec. 1983 where excessive force in an illegal arrest was claimed. We did not decide whether this threshold can be reached absent physical injury. The parties also join issue on whether liability should be measured here by the standards of the fourth amendment or substantive due process. We reach none of these difficult issues. The record is plain that Wisniewski's injuries are not significant within the meaning of Morel.

AFFIRMED.

GOLDBERG, Circuit Judge, dissenting:

In this fourth amendment excessive force case, a material issue of fact exists which should have precluded the district court from granting summary judgment. Moreover, the plaintiff's injuries are significant under Johnson v. Morel. 1 As such, I respectfully dissent.

Michael F. Wisniewski ("Wisniewski"), the plaintiff, sued defendants Johnny Kennard, ("Kennard"), a deputy of the Dallas County Sheriff's Office, and the Dallas County Sheriff's Office, (the "Sheriff's Office"), under 42 U.S.C. section 1983. Wisniewski alleged that Kennard used excessive force when he apprehended Wisniewski. In response, the defendants moved for summary judgment. The district court granted the motion. The district court reasoned that: (1) the defendants established that Kennard acted within his discretionary authority and thus only used reasonable means to apprehend Wisniewski; (2) Wisniewski did not offer proof opposing this conclusion; and, (3) Wisniewski did not allege that he sustained a significant injury.

The district court erred. A district court should not grant summary judgment where material issues of fact exist. 2 The defendants themselves placed Wisniewski's version of the facts before the district court by attaching Wisniewski's verified pleading and sworn affidavit to their motion for

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summary judgment. 3 This pleading and affidavit created material issues of fact.

The State of Texas indicted Wisniewski. On July 29, 1988, the Sheriff's Office dispatched Kennard to Fort Lauderdale, Florida to escort Wisniewski, under warrant, to stand trial in Dallas. Wisniewski escaped from Kennard in Ft. Lauderdale International Airport. Kennard found Wisniewski in the parking lot hiding under a truck. Kennard alleged that he acted within his discretion in apprehending Wisniewski.

In his verified pleading and sworn affidavit, however, Wisniewski contradicted Kennard's version of the facts. Wisniewski alleged that Kennard handcuffed him, pressed his service revolver against Wisniewski's mouth, and told Wisniewski to open his teeth or Kennard would blow them out. Kennard had the hammer on his service revolver pulled back. Kennard continued to threaten Wisniewski, screaming, along with other threats, that he could blow Wisniewski's brains out. When Kennard noticed a security guard watching, he threw Wisniewski by his hair into a truck. When Wisniewski asked the security guard his name, Kennard punched Wisniewski in the stomach three times. A material issue of fact exists concerning Kennard's use of force. On this basis, the case should be remanded for trial.

Wisniewski also claimed that he suffered excessive fear, mental anguish and duress, and nightmares as a result of the incident. The majority states that these injuries are not significant under Johnson v. Morel. 4 I disagree.

The Supreme Court recently discussed Fourth Amendment scrutiny of excessive force claims brought under 42 U.S.C. section 1983. Graham v. Connor, --- U.S. ----, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). The Graham Court stated that:

[o]ur cases have not resolved the question whether the Fourth Amendment continues to provide individuals with protection against the deliberate use of excessive force beyond the point at which arrest ends and pretrial detention begins, and we do not attempt to answer that question today. It is clear...

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