1 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 t he 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 su fficient 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 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, th e court dismissed

several of the plaintiffs' claims pursuant to Rule 50 of the

Federal Rules of Civil Procedure. S ee 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

tha t 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 f inding on

that issue.

2 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 subjec ted 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 c ommenced before a magistrate judge on

November 6, 1 995. 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 toF ED .R.C IV .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 su bmitted the

action to the jury subject to a later d etermination of

the legal questions raised by the motion....

F ED .R.C IV .P. 50(b).

3 the jury without ruling on the defendants' motion. 3 After

deliberating for approximately eleven hours, the ju ry returned

verdicts in favor of the defendants on the false arrest and

excessive force claims asserted b y 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, th e court declared a mistrial with

respect to Laura Ikerd's claim. The court indicated in a

conference with the parties' attorneys that Deputy Va rnado'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. G arcia v. Woman's Hosp. of Texas, 97 F.3d 810, 812

(5th Cir.1996). We consider all of the evidence "in the light and4 Ken neth Ikerd was never charged with any crime related to

t hese allegations. On the contrary, the authorities, including

Deputy Varnado, concluded that the child molestation allegati ons against Kenneth Ikerd were not true.

4 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 B oeing 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]

k ids 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 aske d Kenneth Ikerd why his5

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

o n their report cards. When the officers continued to press Mr.

Ikerd on this issue, Laura prepared t o say something. Mr. Ikerd

told Laura to be quiet, but Deputy Varnad o 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 rep aired

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 t issue injury to the forearm." Prior to

the October 8 incident, Laura had not complained to her doctor of5 Deputies Varnado and Stephens both testified at trial t hat

Varnado never touched Laura's arm at all.

6 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 d iagnosed 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 nee d 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 Fourth6 The Graham Co urt 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.' " I d. (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. S ee

Thomas v. Frederick, 766 F.Supp. 540, 553-55 (W.D.La.1991)

(conclu ding that although the police never attempted to arrest a

woman, a fourth amendment se izure 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). S ee

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 Amendment and its "reasonableness' standard...." G raham 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

"reas onableness' inquiry in an excessive force claim is an

objective one: the question is whether the officers' actions are

"objectively reasonable' in light of the fact s and circumstances

confronting them, without regard to their underlying in tent 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 al lege "(1) an injury, 7 which (2)1992, and is therefore controlled by Hudson.

8 In Dunn, 79 F.3d at 403, this court held that a § 1983

plainti ff 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 resulted directly and only from the use of force that was clearly

excessive to the need; 8 and the excessiveness of which was (3)

o bjectively unreasonable." S pann 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), th e Supreme Court recognized that

"[t]he Eighth Amendment's prohibi tion 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 const itute a constitutional violation.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 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 t hat 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 certa in 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 in10 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. S ee 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.

1 1 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 whi ch the injury occurs. 1 0 Nonetheless, this circuit currently

r equires 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, how ever, "the extent of injury

suffered by a [plaintiff] is one factor that may suggest whether

the use of force" was excessive "in a particular situ ation."

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 directl y related to the

amount of force that is constitutionally perm issible under the

circumstances.

We hold that the evidence presented in this case is

sufficient for a reasonable jury to concl ude 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 us e any physical force against Laura.

Laura was not under arrest and posed no threat to anyone. S ee

United States v. Sanchez, 74 F.3d 562, 566 (5th Cir.1996). 1 111

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.