Michael F. Wisniewski v. Johnny Kennard

Fifth Circuit

Michael F. Wisniewski v. Johnny Kennard

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

CourtCourt of Appeals for the Fifth Circuit

DecidedMay 29, 1990

Docket89-1562

StatusPublished

Cited by33 cases

This text of 901 F.2d 1276 (Michael F. Wisniewski v. Johnny Kennard) 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.

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Michael F. Wisniewski v. Johnny Kennard, 901 F.2d 1276, 1990 U.S. App. LEXIS 8519, 1990 WL 61308 (5th Cir. 1990).

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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.

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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.

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901 F.2d 1276, 1990 U.S. App. LEXIS 8519, 1990 WL 61308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-f-wisniewski-v-johnny-kennard-ca5-1990.

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