Bender v. Brumley

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 91-4884
_____________________

RAYMOND LOUIS BENDER,

Plaintiff-Appellant,

versus

JAMES A. BRUMLEY, et al.,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court
for the Western District of Louisiana
_______________________________________________________

(August 24, 1993)
ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC
(Opinion July 12, 5th Cir. 1993, F.2d )

Before REYNALDO G. GARZA, WILLIAMS, and JONES, Circuit Judges.

JERRE S. WILLIAMS, CIRCUIT JUDGE:

On petition for rehearing filed by defendants-appellees, we

withdraw our previous opinion dated July 12, 1993, and substitute

the following opinion in its place:

This 42 U.S.C. § 1983 case asserts the police used excessive

force in dealing with a pre-trial detainee. The critical, narrow

issue before us is whether it was reversible error for the district

court to instruct the jury that it must find that Raymond Bender

suffered "significant injury" before it could return a verdict in
his favor. We conclude that the jury was inescapably misguided by

the instruction, which ran afoul of the Supreme Court's recent

decision in Hudson v. McMillian, -- U.S. --, 112 S.Ct. 995, 117

L.Ed.2d 156 (1992), as explicated by this Circuit in Valencia v.

Wiggins, 981 F.2d 1440, 1443-47 (5th Cir.), cert. denied, 61

U.S.L.W. 3852 (1993). Accordingly, we remand Bender's federal

excessive force claim to the district court for a new trial. We

affirm the judgments entered against all his other claims.

I. FACTS AND PRIOR PROCEEDINGS

On February 20, 1989, Raymond Louis Bender surrendered himself

as a suspect in the killing of Deputy Jimmy Kinney of the Sabine

Parish Sheriff's Department. Deputy Kinney had been killed by a

single shotgun blast to the chest as he sat in his patrol car a few

hours earlier.1

Later that day, Bender was taken from his cell at the Sabine

Parish jail and escorted by Deputy Jack Staton to the interrogation

room where they were met by Staton's fellow defendants, Deputies

James McComic and Joe Byles, and Officer David Remedies of the

Zwolle Police Department. What transpired inside the interrogation

room is vigorously disputed. The officers maintain that Bender

grew erratic at various times during the questioning and began

flailing his arms; a brief scuffle ensued, and the officers used

1
Bender was subsequently convicted of first degree murder
and sentenced to life imprisonment without the possibility of
probation, parole, or pardon.

2
minimal force to restrain him. The Defendants acknowledge that

everyone in the room was upset, but they emphatically deny that

unreasonable force was used or that a beating took place. The

officers urge that Bender's claims of physical abuse are belied by

his failure to seek medical attention until May 1990, more than

fifteen months following the alleged mistreatment, and then for an

ailment wholly unrelated to the alleged beating.

Bender asserts, on the other hand, that upon his invocation of

his Fifth Amendment right to remain silent, Deputy McComic threw

hot coffee in his face to compel him to speak and hit him on the

head, knocking him to the floor. While on the floor, Bender claims

that Deputy Staton managed several blows and kicks before dragging

him out of the room by his hair. Outside the room, Bender contends

the beating continued -- Staton smacked him between the eyes,

knocking him again to the floor, and Officer Remedies hit and

kicked Bender's head and rear. At this point, says Bender, McComic

admonished Staton and Officer Remedies to stop striking Bender with

closed fists because that might cause severe injuries. Staton then

stomped on Bender's back before he was taken back into the

interrogation room where Deputy Byles saw Bender's bloody nose and

asked what had happened. Bender claims that McComic responded that

Bender had fallen off the stairs, whereupon Byles called Bender a

nigger and threatened to shoot him if he tried to run away.

3
 Bender also maintains that Remedies made a statement that he

saw Staton hit Bender, and emphasizes that a Louisiana state court

judge testified at trial that when she, as an assistant district

attorney for Sabine Parish, questioned Remedies about the incident,

he told her that Staton struck Bender "once or twice."2 Moreover,

Bender insists, witnesses can verify that he "looked kind of

roughed up" after his trip to the interrogation room. He claims

that his nose bled profusely and felt as if it were broken, that he

lost complete feeling in his legs, and that two officers had to

hold him up as he returned to his cell. Additionally, he asserts

that he and/or his family repeatedly requested medical attention,

which was at all times refused. For their part, however, the

Defendants presented witnesses who refuted Bender's claims of

threats and physical abuse.

Exactly one year from the date of Bender's arrest for Deputy

Kinney's murder and the alleged beating, Bender filed suit against

the four officers and Sheriff James Brumley asserting various

causes of action arising under the U.S. Constitution, 42 U.S.C. §§

1983 and 1985(3), and Louisiana state law. At trial's end, the

jury was asked a series of questions. Regarding Bender's federal

claims, the jury was asked whether McComic, Staton, and Remedies

used excessive force and whether Sheriff Brumley withheld medical

2
Later the same day, Officer Remedies telephoned the then-
assistant district attorney to modify his earlier statement.
Remedies stated that a scuffle occurred, but he was not certain
that Staton had struck Bender.

4
care. Regarding Bender's pendent state law claims, the jury was

asked whether any of the five defendants used excessive force as

defined under Louisiana law or intentionally inflicted emotional

distress. The jury rejected Bender's plea for compensatory and

punitive damages and returned a verdict completely exonerating the

officers.3 Judgment was entered, and Bender timely appeals the

dismissal. He claims three principal grounds. He argues that the

district court erred in (1) denying his motions for summary

judgment and directed verdict, (2) admitting potentially

prejudicial testimony concerning Deputy Kinney's murder, and (3)

instructing the jury that proof of significant injury was necessary

to support a valid § 1983 claim. We address these contentions in

turn.

II. DISCUSSION

A. The Denial of Bender's Motions

Prior to trial, Bender filed a motion for summary judgment on

his federal claims of excessive force and deprivation of medical

attention. Noting that "[t]he testimony of both camps is

diametrically opposed," the district court denied the motion, but

partially granted Defendants' Motion for Dismissal or Alternatively

for Summary Judgment by dismissing all claims for verbal threats

3
The issue of qualified immunity, which the district court
elected to carry with the case to trial, is not before us on
appeal.

5
and harassment.4 At the close of the officers' evidence at trial,

Bender sought a directed verdict as to his pendent state law claims

of excessive force and intentional infliction of emotional

distress. This motion, too, was denied.

On appeal, Bender persists that the savage beating he endured

was supported by "concrete proof" and that the trial court's

refusal to grant his motions was error in the face of "the

objective physical evidence." Bender argues strenuously that a

review of the entire record shows that,

any reasonable jury could have found that Appellees in an
act of vengeance maliciously and sadistically used
excessive force against him in the guise of coercing a
confession; Appellant suffered physical pain, emotional
distress, and mental anguish; Appellant was denied
medical treatment for a period of fifteen (15) months
following the assault; and the actions of the Appellees
violated both state and federal laws. (emphasis added)

Bender concedes, however, that conflicting evidence was presented

from which contradictory inferences could have been drawn. The

district court properly denied both motions.

As to the motion for summary judgment, the governing standard

is well settled. Summary judgment is proper when no genuine issue

of material fact exists and the moving party is entitled to

4
Mere allegations of verbal abuse do not present actionable
claims under § 1983. "[A]s a rule, 'mere threatening language
and gestures of a custodial officer do not, even if true, amount
to a constitutional violation.'" McFadden v. Lucas, 713 F.2d
143, 146 (5th Cir.), cert. denied, 464 U.S. 998, 104 S.Ct. 499,
78 L.Ed.2d 691 (1983)(quoting Coyle v. Hughes, 436 F. Supp. 591,
593 (W.D. Okla. 1977)).

6
judgment as a matter of law. FED. R. CIV. P. 56(c); see also, e.g.,

Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986). In determining whether the district court's denial was

proper, we review the court's decision de novo and consider all of

the record evidence and the inferences drawn therefrom in the light

most favorable to the non-movant officers. Walker v. Sears,

Roebuck & Co., 853 F.2d 355, 358 (5th Cir. 1988).

In its memorandum ruling denying the summary judgment, the

district court carefully assessed Bender's evidence and recognized

that testimony in the record squarely contradicted his claims.

Specifically, the court noted that Bender's motion itself included

as exhibits from the prior criminal prosecution the officers' sworn

denials that a beating or other mistreatment took place. The

district court properly concluded that "[t]his testimony is more

than sufficient to create a genuine issue of material fact which

must be resolved by the jury." This case obviously cannot be

viewed as "so one-sided that one party must prevail as a matter of

law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106

S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).

As to the motion for a directed verdict, Bender fails to

discuss in his appellate brief the court's denial of his directed

verdict motion. It is well settled that the failure to argue an

issue posed for consideration is deemed an abandonment of that

issue. E.g., Harris v. Plastics Mfg. Co., 617 F.2d 438, 440 (5th

7
Cir. 1980)(per curiam); FED. R. APP. P. 28(a)(4). Accordingly, we

do not review the district court's directed verdict decision.5

We also consider Bender's related argument, listed separately

in his brief, that the jury's verdict "is against the law and the

clear weight of the evidence." This is essentially an argument

contesting the sufficiency of the evidence, which we assess in the

light most favorable to the jury's verdict. Wilson v. Monarch

Paper Co., 939 F.2d 1138, 1139 (5th Cir. 1991). At the conclusion

of defendant's case, Bender moved for a directed verdict on his

state law claims only. A cursory review of the evidence rebutting

Bender's state law claims supports the district court's decision to

reject this motion. As to Bender's federal claims, absent a motion

5
But even were we sufficiently persuaded by the
similarities between the "genuine issue" summary judgment
standard and the "reasonable jury" directed verdict standard
nonetheless to review the court's denial of Bender's directed
verdict motion, we would affirm the trial court's decision. The
well-established Boeing standard instructs us to "consider all of
the evidence . . . in the light and with all reasonable
inferences most favorable to the party opposed to the motion."
Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en
banc)("If the facts and inferences point so strongly and
overwhelmingly in favor of one party that the Court believes that
reasonable men could not arrive at a contrary verdict, granting
the motion[] is proper."). Applying the substantive law of
Louisiana, since Bender's directed verdict motion applied only to
his pendent state law claims, we are unable to say that a
reasonable and fair-minded jury could not have made credibility
determinations and drawn inferences favoring the officers, and
returned a verdict clearing them of misconduct. See Kyle v. New
Orleans, 353 So.2d 969, 972-73 (La. 1977)(articulating the
elements of excessive force under Louisiana law); Marshall v.
Circle K Corp., 715 F. Supp. 1341, 1343 (M.D. La.
1989)(discussing Louisiana's requirements for claims of
intentional infliction of emotional distress)(citations omitted),
aff'd mem., 896 F.2d 550 (5th Cir. 1990).

8
for directed verdict in the district court our inquiry is

restricted to "whether there was any evidence to support the jury's

verdict, irrespective of its sufficiency, or whether plain error

was committed which, if not noticed, would result in a 'manifest

miscarriage of justice.'" Coughlin v. Capitol Cement Co., 571 F.2d

290, 297 (5th Cir. 1978)(emphasis in original). Measured against

this arduous standard, the evidence submitted regarding Bender's

federal claims falls far short of requiring that the verdict be set

aside on insufficiency of the evidence.

B. The Admission of Evidence About the Murder

Bender next complains that the district court erred in

allowing the jury to hear highly inflammatory and prejudicial

testimony concerning the murder of Deputy Kinney. Specifically,

the judge allowed witnesses to discuss in graphic detail the

circumstances surrounding Kinney's murder, for which Bender had

been convicted about six months earlier. Although he concedes that

Federal Rule of Evidence 609(a)(1) allows a witness to be impeached

with evidence of prior convictions, Bender contends that the

probative value of the evidence was slight and easily outweighed by

the danger of unfair prejudice. Accordingly, he argues, it should

have been excluded under Federal Rule of Evidence 403, which

cautions against the admission of otherwise-relevant evidence

likely to induce a purely emotional decision.

9
 This argument also is without merit. Following its latest

amendment in 1990, Federal Rule of Evidence 609(a)(1), previously

a source of considerable judicial and academic dissatisfaction, now

provides:

(a) General rule. For the purpose of attacking the
credibility of a witness,

(1) evidence that the witness other than an accused
has been convicted of a crime shall be admitted, subject
to Rule 403, if the crime was punishable by death or
imprisonment in excess of one year under the law under
which the witness was convicted, and evidence that an
accused has been convicted of such a crime shall be
admitted if the court determines that the probative value
of admitting this evidence outweighs its prejudicial
effect to the accused[.]

This rule, as now amended, was applicable in this case.

Nothing in the record indicates that the district court engaged in

prejudice/probativity weighing under Rule 403. That omission is

irrelevant in this case. Bender himself gave the first testimony

about the underlying facts of his murder conviction. On direct

examination, Bender discussed in great detail the facts surrounding

the shooting of Deputy Kinney. He also discussed his grand jury

testimony underlying the criminal proceedings. Bender's later

objections to questions concerning the murder were properly

overruled. The danger of unfair prejudice was introduced not by

the defendants, but by Bender himself. The district judge noted as

much when Bender's counsel broached the subject once more near the

end of the trial:

You took your clients through their whole murder scene on
direct examination and you have made it very difficult
now to draw any line. You are now going back into this.

10
 You keep objecting when they talk about it but you bring
it out when you want to. . . . [Bender] got up there and
told the jury I did not murder the deputy and he went
through the whole scene. Now, they're obviously entitled
to impeach him by showing that's a lie.

Given that Bender opened the door to evidence regarding his

underlying murder conviction, his "substantial rights" were not

jeopardized. See Fed. R. Civ. P. 61 (defining harmless error as

"any error or defect in the proceeding which does not affect the

substantial rights of the parties").

C. The "Significant Injury" Requirement

The trial judge erroneously instructed the jury that Bender

could prevail on his federal excessive force claim only if he

proved a significant injury. We find that the mistaken instruction

warrants reversal.

We afford trial judges wide latitude in fashioning jury

instructions and ignore technical imperfections, see, e.g., Pierce

v. Ramsey Winch Co., 753 F.2d 416, 425 (5th Cir. 1985). But the

trial court must "instruct the jurors, fully and correctly, on the

applicable law of the case, and . . . guide, direct, and assist

them toward an intelligent understanding of the legal and factual

issues involved in their search for truth." 9 WRIGHT & MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2556 (1971). Reversal is therefore

appropriate whenever the charge "as a whole leaves us with

substantial and ineradicable doubt whether the jury has been

properly guided in its deliberations." Kyzar v. Vale Do Ri Doce

11
Navegacai, S.A., 464 F.2d 285, 290 (5th Cir. 1972), cert. denied,

410 U.S. 929, 93 S.Ct. 1367, 35 L.Ed.2d 591 (1973); see also, e.g.,

McCullough v. Beech Aircraft Corp., 587 F.2d 754, 759 (5th Cir.

1979). Assessing whether the jury was properly guided, however, is

only one-half of the inquiry. Even though error may have occured,

"[w]e will not reverse 'if we find, based upon the record, that the

challenged instruction could not have affected the outcome of the

case.'" Middleton v. Harris Press and Shear, Inc., 796 F.2d 747,

749 (5th Cir. 1986)(quoting Bass v. United States Dept. of

Agriculture, 737 F.2d 1408, 1414 (5th Cir. 1984)).

We first address a threshold, procedural matter. Defendants

argue strenuously that Bender failed to preserve this issue for

appeal because he did not lodge oral on-the-record objections to

the jury charge when invited to do so by the trial court. FED. R.

CIV. P. 51. This is immaterial, however, since Bender had earlier

filed written objections to the proffered jury instructions. We

recognize that error is preserved for appeal so long as the

complaining party states his assertion to the trial court prior to

the time when the court invites on-the-record objections to the

charge. E.g., Pierce, 753 F.2d at 424; Lang v. Texas & P. Ry., 624

F.2d 1275, 1279 (5th Cir. 1980)("the failure to object may be

disregarded if the party's position has previously been made clear

to the court and it is plain that a further objection would have

been unavailing"). The lack of another in-court objection echoing

Bender's earlier written protest, although useful as are all on-

12
the-record occurrences, does not defeat his ability to challenge

the instructions on appeal.

The officers voice an alternative argument, that even if we

recognize Bender's earlier written objections as timely, they are

nonetheless defective because they fail to satisfy Rule 51's demand

for specificity. We conclude that Bender's written objections were

sufficiently explicit. The instructions proffered by the trial

court, as set out below, were gleaned almost verbatim from the

factors set forth in Huguet v. Barnett, 900 F.2d 838, 841 (5th Cir.

1990). Huguet is an Eighth Amendment excessive force case

importing the significant injury requirement from Johnson v. Morel,

876 F.2d 477, 480 (5th Cir. 1989)(en banc)(per curiam), a Fourth

Amendment excessive force case holding that trivial harms do not

rise to constitutional import.

Bender's written objections clearly challenge the use of

Johnson's Fourth Amendment standard:

Plaintiff object[s] to Jury Charge No. 3 for the reason
that Johnson [v]. Morel . . . was not the clearly
established law in the Fifth Circuit on February 20,
1989, hence the test enunciated in Johnson is not
applicable to the facts in this case.
* * *
Plaintiff object[s] to Jury Charge No. 5 for the reason
that Johnson [v]. Morel . . . is not the law of the case.
Plaintiff's civil rights were violated after his arrest
and [after he was] locked in a jail cell. None of the
officers involved in the arrest of Plaintiff participated
in the beating in the interrogation room. Plaintiff's
Fourteenth Amendment due process rights to be free from
punishment were violated by Staton, McComic, Byles and
Remedies.

13
 We now turn to the critical issue. Was it correct to instruct

the jury that proof of significant injury was necessary to support

Bender's federal claim? If not, was the error harmless? Two

recent cases control our decision. The first is the Supreme

Court's decision in Hudson v. McMillian, -- U.S. --, 112 S.Ct. 995,

117 L.Ed.2d 156 (1992). In Hudson, the Supreme Court abandoned its

prior insistence on an objectively serious deprivation to hold that

a prisoner need not demonstrate significant injury where the force

used was malicious and wanton. It reversed a decision of this

Court that had applied our established precedent emphasizing the

requirement of significant injury in excessive force cases. The

Supreme Court held that "the core judicial inquiry is . . . whether

force was applied in a good-faith effort to maintain or restore

discipline, or maliciously and sadistically to cause harm." Id. at

--, 112 S.Ct. at 999 (citing Whitley v. Albers, 475 U.S. 312, 320-

21, 106 S.Ct. 1078, 1084-85, 89 L.Ed.2d 251 (1986)).

Subsequently, in Valencia v. Wiggins, 981 F.2d at 1440, 1446

(5th Cir. 1993), petition for cert. filed April 19, 1993, we held

that it was obviously proper to extend the analysis announced in

Hudson and Whitley to pre-trial detainees under the due process

clause of the Fourteenth Amendment. See also Jackson v.

Culbertson, 984 F.2d 699, 700 (5th Cir. 1993)(per curiam). In

short, when determining what standard applies to excessive force

claims brought by pre-trial detainees, the proper due process

inquiry does not probe the extent of the injury sustained, although

14
that is one factor that can evince wantonness. Rather, it probes

the subjective intent of the detaining officers.6

The timing of this case adds an unusual facet; it was tried

while Hudson was pending before the Supreme Court. Anticipating

that the Supreme Court might abrogate our Circuit's significant

injury requirement, the trial court attempted to word the jury

interrogatories in such a manner as to avoid the effect of a

reversal. Focusing on the federal claims, the court first asked,

"Do you find that the following defendants used excessive force

against Raymond Bender which was objectively unreasonable?" Then,

the court asked separately whether Bender "has proven a significant

injury resulting directly from excessive force[.]" The jury

answered "no" to both inquiries. The jury was plainly required to

find significant injury before answering "yes" to the second

question. Whether the same can be said of the first question turns

on how the jury was instructed.

6
Admittedly, such intent is often undiscernible, and the
trier of fact must base its determination on relevant objective
factors suggestive of intent. Our recent decision on remand in
Hudson summarized some of the pertinent factors:

1. the extent of the injury suffered;
2. the need for the application of force;
3. the relationship between the need and the amount of
force used;
4. the threat reasonably perceived by the responsible
officials; and
5. any efforts made to temper the severity of the forceful
response.

Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992).

15
 It is clear that the jury was specifically instructed to deny

Bender's federal claim unless he proved that he sustained a

significant injury. In instructing the jury about these claims,

the trial judge quoted almost verbatim from Johnson, now arguably

overruled,7 and stated repeatedly that significant injury was a

vital, necessary component of Bender's case:

In order to prove that the defendants used excessive
force, Mr. Bender must prove by a preponderance of the
evidence:

1. a significant injury, which

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

3. objectively unreasonable.

If Bender fails to prove any of these elements, you
must find for the defendants. These three elements are
objective focusing on the injury, the amount of force
used, and the amount of force necessary.

To determine whether a "significant injury" has been
inflicted, you must consider only the injuries resulting
directly from the constitutional wrong. There can be a

7
Whether Johnson has in fact been overturned remains
unresolved. At first look, the abrogation of significant injury
appears settled no matter what standard under § 1983 is being
applied. See Knight v. Caldwell, 970 F.2d 1430, 1432 (5th Cir.
1992)(stating in dictum that "we can no longer require persons to
prove 'significant injury,' . . . under section 1983"). But
other recent Fifth Circuit cases, while recognizing the tension
between Johnson and Hudson, have expressly refused to decide
whether Johnson's vitality has been impaired by Hudson in the
Fourth Amendment context. See Mouille v. City of Live Oak, Tex.,
977 F.2d 924, 929 and n. 7 (5th Cir. 1992), cert. denied, 1993
U.S. LEXIS 3765 (U.S. 1993); King v. Chide, 974 F.2d 653, 657 n.
2 (5th Cir. 1992). Thus, it remains an open question in this
Circuit whether Johnson's significant injury requirement survives
in situations involving arresting, as opposed to custodial,
officers.

16
 constitutional violation only if a significant injury
resulted from the officer's use of excessive force.

Defendants counter on multiple fronts. First, they argue that

even if we determine that the court issued erroneous instructions,

"such instruction was harmless error as the jury specifically found

that none of the defendants used excessive force which was

objectively unreasonable." The defendants thus maintain that the

precise language of the special verdict form "cured" any defect in

the instructions and provides a basis to sustain the verdict even

though Hudson abolished the significant injury requirement. This

argument must fail. As illustrated above, before even reaching the

question of whether the officers' actions were objectively

unreasonable, the jury was first required to agree that Bender had

suffered a significant injury: "There can be a constitutional

violation only if a significant injury resulted from the officer's

use of excessive force."

Second, the officers point out that when the trial judge

advised the jury concerning Bender's excessive force claim arising

under state law, he specifically stated that significant injury was

not a necessary element under Louisiana law. Thus, since the jury

rejected Bender's state claim as well, the officers insist it would

be futile to try the entire case again, particularly the state law

component. We partly agree. Bender does not contest the accuracy

of the instructions regarding his excessive force claim arising

under state law. Recognizing "the almost invariable assumption of

17
the law that jurors follow their instructions," Richardson v.

Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176

(1987), we hold that the jury's decision exonerating the officers

under state law should be affirmed. Affirming the state component,

however, is an unsound basis upon which to deny automatically

Bender's federal claim, where the error occured. Although the

relevant objective factors are similar under both schemes, compare,

e.g., Kyle v. New Orleans, 353 So.2d 969, 973 (La. 1977), with

Hudson, 962 F.2d at 523, they are not so identical for us to

conclude that a decision absolving the officers under Louisiana law

mandates a parallel finding of "no excessive force" under § 1983.

Simply put, the differences--though admittedly slight--extend

beyond whether "significant injury" is used as a predicate to

liability. Although Judge Jones's cordial dissent is persuasive,

we cannot adopt her view that the erroneous instruction was

harmless error.

The Supreme Court has advised that "if one cannot say with

fair assurance, after pondering all that happened without stripping

the erroneous action from the whole, that the judgment was not

substantially swayed by the error, it is impossible to conclude

that [Bender's] substantial rights were not affected." Kotteakos

v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed.

1557 (1946). Our review of the record evidence, particularly in

light of the subtle--yet conceivably important--differences between

the two excessive force standards, does not convince us that the

18
jury's decision was unaffected by the challenged instruction.

Bass, 737 F.2d at 1414. Because we are left in "grave doubt"

whether the trial court's erroneous instruction exerted

"substantial influence" over the outcome of the case, the jury's

decision on Bender's § 1983 claims cannot stand. Id.

The case must be retried to submit properly the question:

"whether force was applied in a good-faith effort to maintain or

restore discipline, or maliciously and sadistically to cause harm."

Hudson, -- U.S at --, 112 S.Ct. at 999; see Wiggins, 981 F.2d at

1446-47, 1449.

III. CONCLUSION

The judgments entered on Bender's federal excessive force

claims are REVERSED, and those causes of action are REMANDED to the

district court for a new trial. Our decision today does not affect

the denial of Bender's federal claim of deprivation of medical

treatment or his various state claims. Upon careful examination of

the record evidence, the judgments entered on those issues are

AFFIRMED.

No member of the panel nor Judge in regular active service of

this Court having requested that the Court be polled on rehearing

en banc (Federal Rules of Appellate Procedure and Local Rule 35),

the suggestion for Rehearing En Banc is DENIED.

19
AFFIRMED IN PART. REVERSED AND REMANDED IN PART.

JONES, Circuit Judge, concurring in part and dissenting in part:

Judge Williams's opinion is persuasive and I readily

concur in all but one aspect of its reasoning, with which I must

cordially disagree. I dissent only from that portion of his

opinion which remands Bender's case for a new trial on whether the

police officers used excessive force under federal constitutional

standards. Although the district court heroically attempted to

apply then-extant law on the constitutional standard for excessive

force against pretrial detainees, I agree that in light of Hudson

and Valencia, supra, his instructions were wrong. Unlike my

colleagues, I would hold this a harmless error. The court

carefully instructed the jury that Louisiana law does not require

a finding of significant injury as a predicate to state tort law

liability of the officers, and the jury found against Bender. I do

not agree that simply because the same instruction will now be

given as to federal standards of recovery, a new jury could or

should reach a different factual conclusion. The officers, I would

contend, have been effectively exonerated by the jury's refusal to

find that -- even without a significant injury requirement --

Bender was the victim of excessive force. I therefore dissent from

this portion of the panel opinion.

20