United States Court of Appeals,
Fifth Circuit.
No. 95-31240
Summary Calendar.
Kenneth IKERD, Individually and on Behalf of his Minor Child,
Laura Ikerd; Sharon Ikerd, Individually and on Behalf of her Minor
Child, Laura Ikerd, Plaintiffs-Appellants,
v.
Duane BLAIR, Sheriff; Harold Varnado, Deputy Sheriff,
Incorrectly Sued as Ray Varnado; Roy Stevens, Deputy Sheriff,
Defendants-Appellees.
Dec. 12, 1996.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
BENAVIDES, Circuit Judge:
This appeal requires us to determine whether the district
court erred in granting a deputy sheriff's motion for judgment as
a matter of law regarding an excessive use of force claim. We hold
that the evidence viewed in the light most favorable to the
plaintiff is sufficient for a reasonable fact finder to conclude
that the deputy injured a ten-year-old girl when he violently and
without cause jerked her out of a chair in the living room of her
home and dragged her across the room by her arm. Accordingly, we
find that a reasonable jury could conclude that the deputy used
excessive force in violation of the Fourth and Fourteenth
Amendments to the United States Constitution. We therefore vacate
the judgment of the district court.
I. Proceedings Below.
1
Plaintiffs Kenneth and Sharon Ikerd, a married couple, brought
this action for damages on their own behalf and on behalf of their
minor daughter pursuant to 42 U.S.C. § 1983. The plaintiffs
alleged that they sustained injuries as a result of the
unconstitutional conduct of several law enforcement officers. The
plaintiffs alleged that on October 8, 1992, the defendants falsely
arrested Kenneth Ikerd and subjected him to excessive force,
intimidation, and harassment. In addition, at the time of the
alleged false arrest, the plaintiffs claimed that officer Harold
Varnado, Jr., acting under color of state law, used excessive force
against Laura Ikerd in violation of the Fourth and Fourteenth
Amendments.
A jury trial was commenced before a magistrate judge on
November 6, 1995.1 At the close of the evidence, the defendants
moved for judgment as a matter of law pursuant to Rule 50 of the
Federal Rules of Civil Procedure.2 The court submitted the case to
1
An earlier trial in this case resulted in a mistrial because
of the unexcused absence of a juror. At the close of the
plaintiffs' evidence in the first trial, the court dismissed
several of the plaintiffs' claims pursuant to Rule 50 of the
Federal Rules of Civil Procedure. See note 2. The dismissed
claims are not at issue in this appeal.
2
Rule 50 provides, in part:
If during a trial by jury a party has been fully heard on
an issue and there is no legally sufficient evidentiary
basis for a reasonable jury to find for that party on
that issue, the court may determine the issue against
that party and may grant a motion for judgment as a
matter of law against that party with respect to a claim
or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on
that issue.
2
the jury without ruling on the defendants' motion.3 After
deliberating for approximately eleven hours, the jury returned
verdicts in favor of the defendants on the false arrest and
excessive force claims asserted by Kenneth Ikerd. The jury,
however, remained deadlocked on Laura Ikerd's claim of excessive
force against Deputy Varnado in his personal capacity.
On November 9, 1995, the court declared a mistrial with
respect to Laura Ikerd's claim. The court indicated in a
conference with the parties' attorneys that Deputy Varnado's
pending Rule 50 motion would be denied because of factual conflicts
in the record. Nonetheless, the court later reconsidered the
evidence and granted Deputy Varnado's motion for judgment as a
matter of law because "the defendant's act could not have amounted
to anything more than a de minimis use of force." On November 15,
1995, the court entered judgment in favor of the defendants on all
claims, including Laura Ikerd's excessive force claim. This appeal
followed.
II. Standard of Review
We review the district court's grant of judgment as a matter
of law de novo. Garcia v. Woman's Hosp. of Texas, 97 F.3d 810, 812
(5th Cir.1996). We consider all of the evidence "in the light and
FED.R.CIV.P. 50(a)(1).
3
Whenever a motion for judgment as a matter of law made at the
close of all the evidence is denied or for any reason is
not granted, the court is deemed to have submitted the
action to the jury subject to a later determination of
the legal questions raised by the motion....
FED.R.CIV.P. 50(b).
3
with all reasonable inferences most favorable to the party opposed
to the motion." Id. (quoting Resolution Trust Corp. v. Cramer, 6
F.3d 1102, 1109 (5th Cir.1993)). "If the facts and inferences
point so strongly in favor of the moving party that the reviewing
court believes that reasonable jurors could not have arrived at a
contrary verdict, then we will conclude that the motion should have
been granted." Id. (citing Boeing Co. v. Shipman, 411 F.2d 365,
374 (5th Cir.1969) (en banc)).
III. Facts
On the morning of October 8, 1992, ten-year-old Laura Ikerd
and her eight-year-old brother were at home in their living room
watching television. Deputies Harold Varnado, Jr. and Roy Stephens
of the Washington Parish Sheriff's Office arrived at their home
dressed in plain clothes. The officers did not identify themselves
but asked to speak to the children's father. Laura woke her father
who went to the front door to meet the deputies.
As Kenneth Ikerd approached the front door to meet the
deputies, he asked if he could help the officers. Deputy Varnado
responded: "You're under arrest for molestation of Jimmy Buras'[s]
kids and your two kids."4 After hearing these allegations, Laura
went into the living room and started to cry. Kenneth Ikerd and
the deputies followed Laura into the living room.
At this time, Deputy Varnado asked Kenneth Ikerd why his
4
Kenneth Ikerd was never charged with any crime related to
these allegations. On the contrary, the authorities, including
Deputy Varnado, concluded that the child molestation allegations
against Kenneth Ikerd were not true.
4
children were not in school. Mr. Ikerd told the officers that he
had allowed them to stay home as a reward for getting good grades
on their report cards. When the officers continued to press Mr.
Ikerd on this issue, Laura prepared to say something. Mr. Ikerd
told Laura to be quiet, but Deputy Varnado said that Mr. Ikerd
should shut up and let her answer. When Deputy Varnado asked Laura
why she was not in school, Laura refused to answer and told him to
leave her alone.
Deputy Varnado approached Laura and violently jerked her out
of her chair by her right arm and dragged her into the kitchen.
Deputy Varnado told Mr. Ikerd to shut up and get out of the way
while he whispered something into Laura's ear. Mr. Ikerd left the
kitchen pursuant to Deputy Varnado's orders.
Laura's right arm had been broken and surgically repaired
about one year prior to this incident. Laura testified that the
force used by Deputy Varnado in pulling her out of the chair "hurt
a lot." Before this incident, Laura's arm had been healing well
and her only complaint to her family was of minor tingling in her
fingers. After this incident, however, Laura complained much more
frequently about her arm, lamenting that she was experiencing
complete numbness in her fingertips and pain in the arm.
Laura's physician testified that on October 15, 1992, when he
first examined Laura after the incident, Laura complained of pain
in her forearm and tingling in her fingertips. Laura's injury was
diagnosed as "mild soft tissue injury to the forearm." Prior to
the October 8 incident, Laura had not complained to her doctor of
5
tingling in her fingers. Laura's doctor testified that such a
symptom could have been caused by trauma or damage to the nerves of
Laura's forearm as a result of being grabbed.
In addition to her physical injuries, a clinical psychologist
and a psychiatrist both diagnosed Laura as having suffered from
post-traumatic stress disorder as a result of the October 8
incident. After the incident, Laura had difficulty concentrating
and her grades in school dropped. Laura frequently cried when she
discussed the incident or saw police cars, suffered from recurring
headaches and bad dreams, and frequently replayed the incident in
her mind.
Deputy Varnado acknowledged in his testimony at trial that he
is a "big old boy" who weighed close to 300 pounds at the time of
trial. Furthermore, Deputy Varnado testified that there was never
a need to use any physical force against Laura.5 When asked
whether there was any need to place his hands on Laura, Deputy
Varnado responded, "None whatsoever."
IV. Legal Discussion
Appellants claim that a reasonable jury could conclude that
Deputy Varnado used excessive force against Laura Ikerd in the
course of arresting her father. The Supreme Court has held that
"all claims that law enforcement officers have used excessive force
... in the course of an arrest, investigatory stop, or other
"seizure' of a free citizen should be analyzed under the Fourth
5
Deputies Varnado and Stephens both testified at trial that
Varnado never touched Laura's arm at all.
6
Amendment and its "reasonableness' standard...." Graham v. Connor,
490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989).6
"As in other Fourth Amendment contexts, however, the
"reasonableness' inquiry in an excessive force claim is an
objective one: the question is whether the officers' actions are
"objectively reasonable' in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation." Id. at 397, 109 S.Ct. at 1872 (citations omitted).
It is clearly established law in this circuit that in order
to state a claim for excessive force in violation of the
Constitution, a plaintiff must allege "(1) an injury,7 which (2)
6
The Graham Court noted that "[a] "seizure' triggering the
Fourth Amendment's protections occurs only when government actors
have, "by means of physical force or show of authority, ... in some
way restrained the liberty of a citizen.' " Id. (quoting Terry v.
Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d
889 (1968)). It is undisputed that a seizure occurred in the
instant case when Deputy Varnado grabbed Laura Ikerd's arm. See
Thomas v. Frederick, 766 F.Supp. 540, 553-55 (W.D.La.1991)
(concluding that although the police never attempted to arrest a
woman, a fourth amendment seizure occurred when the police used
excessive force against her).
7
At one time, this circuit required a plaintiff to establish
a "serious injury" in order to prevail in an excessive use of force
action. See, e.g., Johnson v. Morel, 876 F.2d 477 (5th Cir.1989)
(en banc). Proof of serious injury is no longer necessary for
claims based on conduct occurring after February 1992, when the
Supreme Court invalidated that requirement. Hudson v. McMillian,
503 U.S. 1, 4, 112 S.Ct. 995, 997-98, 117 L.Ed.2d 156 (1992). See
also Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.1992), cert.
denied, 507 U.S. 926, 113 S.Ct. 1298, 122 L.Ed.2d 688 (1993) ("The
Supreme Court's decision makes clear that we can no longer require
persons to prove "significant injury' ... under section 1983");
Dunn v. Denk, 79 F.3d 401, 404 (5th Cir.) (en banc), cert. denied,
--- U.S. ----, 117 S.Ct. 61, --- L.Ed.2d ---- (1996) (Barksdale,
J., concurring) ("Johnson v. Morel controlled from early July 1989
until late February 1992, when its significant injury prong was
overruled by Hudson v. McMillian " (internal citations omitted)).
The alleged conduct in the instant case occurred on October 8,
7
resulted directly and only from the use of force that was clearly
excessive to the need;8 and the excessiveness of which was (3)
objectively unreasonable." Spann v. Rainey, 987 F.2d 1110, 1115
(5th Cir.1993) (internal quotations omitted). In gauging the
objective reasonableness of the force used by a law enforcement
officer, we must balance the amount of force used against the need
for that force. Id.
In Hudson v. McMillian, 503 U.S. 1, 9-10, 112 S.Ct. 995, 1000-
01, 117 L.Ed.2d 156 (1992), the Supreme Court recognized that
"[t]he Eighth Amendment's prohibition of "cruel and unusual'
punishments necessarily excludes from constitutional recognition de
minimis uses of physical force, provided that the use of force is
not of a sort "repugnant to the conscience of mankind.' "
(internal quotations omitted). In granting Deputy Varnado's motion
for judgment as a matter of law, the district court relied on this
language and concluded that the "defendant's act could not have
amounted to more than a de minimis use of force."
The Hudson Court recognized that a constitutional violation
does not occur every time an officer touches someone. In just
about every conceivable situation, some amount of force or contact
would be too nominal to constitute a constitutional violation.
1992, and is therefore controlled by Hudson.
8
In Dunn, 79 F.3d at 403, this court held that a § 1983
plaintiff can recover for "aggravation of a preexisting injury
caused by the use of excessive force." Thus, although Laura's
injuries were exacerbated by the fact that her arm had previously
been broken, this circumstance does not preclude her from
recovering damages for any excessive force used against her.
8
When the force used is insufficient to satisfy the legal standard
necessary for recovery, the amount of force is de minimis for
constitutional purposes.9
The amount of force that is constitutionally permissible,
therefore, must be judged by the context in which that force is
deployed. For example, a convicted prisoner clearly does not have
a cognizable eighth amendment claim every time he or she is pushed
or shoved. See id. at 9, 112 S.Ct. at 1000 (quoting Johnson v.
Glick, 481 F.2d 1028, 1033 (2nd Cir.), cert. denied, 414 U.S. 1033,
94 S.Ct. 462, 38 L.Ed.2d 324 (1973)). Similarly, even in the
fourth amendment context, a certain amount of force is obviously
reasonable when a police officer arrests a dangerous, fleeing
suspect. See Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694,
1697, 85 L.Ed.2d 1 (1985). On the other hand, in the context of
custodial interrogation, the use of nearly any amount of force may
result in a constitutional violation when a suspect "poses no
threat to [the officers'] safety or that of others, and [the
suspect] does not otherwise initiate action which would indicate to
a reasonably prudent police officer that the use of force is
justified." Ware v. Reed, 709 F.2d 345, 351 (5th Cir.1983).
Similarly, we believe that the amount of injury required to
prevail in an excessive force action depends on the context in
9
In the fourth amendment context, any force exerted by a law
enforcement officer that would be objectively reasonable under
Graham would also be de minimis under Hudson. Similarly, any force
that would be objectively unreasonable under Graham would not fall
within the de minimis language of Hudson. In other words, only one
inquiry is required to determine whether an officer used excessive
force in violation of the Fourth Amendment.
9
which the injury occurs.10 Nonetheless, this circuit currently
requires a plaintiff to have "suffered at least some injury."
Jackson v. R.E. Culbertson, 984 F.2d 699, 700 (5th Cir.1993). As
the Supreme Court has recognized, however, "the extent of injury
suffered by a [plaintiff] is one factor that may suggest whether
the use of force" was excessive "in a particular situation."
Hudson, 503 U.S. at 7, 112 S.Ct. at 999. Therefore, the amount of
injury necessary to satisfy our requirement of "some injury" and
establish a constitutional violation is directly related to the
amount of force that is constitutionally permissible under the
circumstances.
We hold that the evidence presented in this case is
sufficient for a reasonable jury to conclude that Deputy Varnado
used objectively unreasonable force against Laura Ikerd in
violation of her rights under the Fourth and Fourteenth Amendments
to the United States Constitution. Deputy Varnado acknowledged
that there was no need to use any physical force against Laura.
Laura was not under arrest and posed no threat to anyone. See
United States v. Sanchez, 74 F.3d 562, 566 (5th Cir.1996).11
10
At least one court has suggested that no physical injury is
required to state an excessive force claim when a police officer
holds a gun to the head of a nine-year-old child and threatens to
pull the trigger. See McDonald, III v. Haskins, 966 F.2d 292, 292-
95 (7th Cir.1992). We need not address this issue because Laura
Ikerd has alleged and presented evidence of physical injuries
resulting from Deputy Varnado's conduct.
11
See also McDonald, III, 966 F.2d at 292-95 (holding that the
facts that the plaintiff was nine-years-old, was not under arrest,
and posed no threat to the officers or the general community were
"the very ingredients relevant to an excessive force inquiry").
10
Nonetheless, the appellants produced evidence that Deputy Varnado,
a 300-pound man, violently jerked Laura, a ten-year-old child, out
of her living room chair and dragged her into another room.
Furthermore, the alleged force employed by Deputy Varnado resulted
in Laura suffering soft tissue injury to her forearm, possible
nerve damage, and post-traumatic stress disorder. Viewing the
evidence in the light most favorable to Laura, as required under
Boeing, we conclude that the district court erred in granting
Deputy Varnado's motion for judgment as a matter of law.
The judgment of the district court is VACATED and REMANDED for
further proceedings.
11