Wisniewski v. Kennard, 89-1562

Decision Date29 May 1990
Docket NumberNo. 89-1562,89-1562
Citation901 F.2d 1276
PartiesMichael F. WISNIEWSKI, Plaintiff-Appellant, v. Johnny KENNARD, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

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

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 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, however, that the Due Process Clause protects a pretrial detainee from the use of excessive force that amounts to punishment. 5

Because Kennard abused Wisniewski before the state confined him but after he was arrested, this case raises the very issue discussed but not resolved in Graham.

The majority, however, averts deciding whether Kennard's liability should be measured by Fourth Amendment or substantive due process standards because the majority concludes that Wisniewski's injury is not significant within the meaning of Morel. This logic places the cart before the horse. Under Morel, significant injury is one of the three elements necessary to establish a Fourth Amendment excessive force claim. The Morel court stated that:

[a] plaintiff can ... prevail on a Constitutional excessive force claim only by proving each of these three elements:

(1) a significant injury, which

(2) resulted directly and only from the use of force that was clearly excessive to the need; and the excessiveness of which was

(3) objectively unreasonable. 6

By using Morel to analyze Wisniewski's claim, the majority has thus assumed that Wisniewski's claim should be analyzed by Fourth Amendment standards. If the majority has held that post-arrest, pre-trial detention excessive force claims merit Fourth Amendment scrutiny, I agree.

Wisniewski did, however, suffer a significant injury. Regarding significant injury, the Morel court stated that:

[i]njuries which result from, for example, an officer's justified use of force to overcome resistance to arrest do not implicate constitutionally protected interests. An arrest is inevitably an unpleasant experience. An officer's use of excessive force does not give constitutional import to injuries that would have occurred absent the excessiveness of the force, or to minor harms. Nor can transient distress constitute a significant injury.... 7

We think it unlikely that such a significant injury will be caused by unnecessary force without significant physical injury. However, on the facts before us here, we do not decide whether a significant but non-physical injury would be legally sufficient. 8

By referring to minor harms and transient distress, the Morel court recognized that de minimis injuries, both physical and psychological, are not constitutionally actionable because they may occur even if the force used to arrest is objectively reasonable and not clearly excessive. Regarding the amount of force that an officer may use, the Morel court quoted Graham for the proposition that:

"the 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.... The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments--in circumstances that are tense, uncertain, and rapidly evolving--about the amount of force that is necessary in a particular situation." 9

By adopting the officer's perspective, the Morel court recognized the need for police discretion in using force to make arrests. Under Morel, a conclusion that the police used objectively unreasonable and clearly excessive force thus means that they abused this discretion, or, conversely, that the plaintiff's privacy interests outweighed the need for the type of force the police used. 10 Given this abuse, under Morel's calculus, moral eyes clearly see that any resulting injury must be addressed, intangible or not.

Adopting Morel's language, Wisniewski's injury would not have occurred absent Kennard's excessive use of force. Kennard's use of force clearly exceeded the amount necessary to apprehend Wisniewski. Shoving a cocked loaded service revolver into a handcuffed suspect's mouth is, moreover, objectively unreasonable. The absurdity of any argument to the contrary is patent. Given this heinous behavior, I do not understand why the majority labeled Wisniewski's injury insignificant.

The rationale cannot be that Kennard acted unintentionally. He did not, even though the relevance of his state of mind is unclear. Perhaps, instead, the majority believes intangible injuries should not be actionable. To my mind, however, Wisniewski alleged, for the purpose of opposing summary judgment, that Kennard's actions were clearly excessive and objectively unreasonable under Morel. The government thus has a moral obligation to remedy the injuries inflicted, tangible or intangible. The Fourth Amendment demands no less.

The Fourth Amendment protects against unreasonable searches and seizures. 11 To analyze...

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