Everett R. Mark A/K/A Howard Van Zandt Williams, 296711 v. Harry Caldwell

Fifth Circuit

Everett R. Mark A/K/A Howard Van Zandt Williams, 296711 v. Harry Caldwell

754 F.2d 1260, 1985 U.S. App. LEXIS 28315

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 11, 1985

Docket84-2265

StatusPublished

Cited by18 cases

This text of 754 F.2d 1260 (Everett R. Mark A/K/A Howard Van Zandt Williams, 296711 v. Harry Caldwell) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Everett R. Mark A/K/A Howard Van Zandt Williams, 296711 v. Harry Caldwell, 754 F.2d 1260, 1985 U.S. App. LEXIS 28315 (5th Cir. 1985).

Pincite

Opinion

GEE, Circuit Judge:

Everett Mark appeals from the dismissal of his § 1983 civil rights complaint that Houston police officers used excessive force in arresting him. Because of various procedural deficiencies, the substance of Mark’s pro se appeal is only doubtfully before us. Even so, since the merits are simply disposed of, we assume arguendo that they are properly here and affirm.

At the hearing, Mark testified that at the time of his arrest one of the officers slapped him several times with his open hand. He further testified that he was not injured by the slaps and that they caused no bleeding, required no medical attention, and were too weak to knock him down. Thus, on his own evidence, they amounted to more of an affront than an injury. Assuming the truth of his account, and however reprehensible such conduct by a policeman may be, it does not rise to such a level that redress may be had for it under 42 U.S.C. § 1983.

Some years ago, in Shillingford v. Holmes, 634 F.2d 263, 264 (5th Cir.1981), we recognized that § 1983 “does not grant a cause of action for every injury wrongfully inflicted by a state officer.” To merit redress under that federal statute, we held, the officer’s conduct must have been such that it “caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice.” Id. at 265. Other batteries are the business of state law. While the indignity inflicted on Mark arguably satisfies the last two elements of this formula, it clearly falls short of the first.

Although Mark’s appeal must therefore fail, we do not think it so vexatious and frivolous as to justify the award of costs and attorney’s fees requested by the appellees.

AFFIRMED.

Free access — add to your briefcase to read the full text and ask questions with AI

GEE, Circuit Judge:

Everett Mark appeals from the dismissal of his § 1983 civil rights complaint that Houston police officers used excessive force in arresting him. Because of various procedural deficiencies, the substance of Mark’s pro se appeal is only doubtfully before us. Even so, since the merits are simply disposed of, we assume arguendo that they are properly here and affirm.

At the hearing, Mark testified that at the time of his arrest one of the officers slapped him several times with his open hand. He further testified that he was not injured by the slaps and that they caused no bleeding, required no medical attention, and were too weak to knock him down. Thus, on his own evidence, they amounted to more of an affront than an injury. Assuming the truth of his account, and however reprehensible such conduct by a policeman may be, it does not rise to such a level that redress may be had for it under 42 U.S.C. § 1983.

Some years ago, in Shillingford v. Holmes, 634 F.2d 263, 264 (5th Cir.1981), we recognized that § 1983 “does not grant a cause of action for every injury wrongfully inflicted by a state officer.” To merit redress under that federal statute, we held, the officer’s conduct must have been such that it “caused severe injuries, was grossly disproportionate to the need for action under the circumstances, and was inspired by malice.” Id. at 265. Other batteries are the business of state law. While the indignity inflicted on Mark arguably satisfies the last two elements of this formula, it clearly falls short of the first.

Although Mark’s appeal must therefore fail, we do not think it so vexatious and frivolous as to justify the award of costs and attorney’s fees requested by the appellees.

AFFIRMED.

Cite This Page — Counsel Stack

Bluebook (online)

754 F.2d 1260, 1985 U.S. App. LEXIS 28315, Counsel Stack Legal Research, https://law.counselstack.com/opinion/everett-r-mark-aka-howard-van-zandt-williams-296711-v-harry-caldwell-ca5-1985.

Opinion

Related

Cite This Page — Counsel Stack