Michael F. Wisniewski v. Johnny Kennard

901 F.2d 1276, 1990 U.S. App. LEXIS 8519, 1990 WL 61308

Opinions

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. § 1983 against a deputy sheriff and the Dallas County Sheriffs Office. Wisniewski claims that upon his apprehension following an escape, the deputy sheriff handcuffed him, then placed his revolver in Wis-niewski’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 Sheriffs 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 pre-termitted 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. § 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.