*Pursuant to 5TH CIR. R. 47.5, the Court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-30695

Summary Calendar

_____________________

OTHA THOMAS,

Plaintiff-Appellant,

versus

CITY OF MONROE, ET AL.,

Defendants,

CITY OF MONROE; GUTIERREZ, Police Officer;

B. POWELL; E. THOMPSON,

Defendants-Appellees.

_______________________________________________________

Appeal from the United States District Court for

the Western District of Louisiana

(94-CV-1072)

_______________________________________________________

August 19, 1998

Before REAVLEY, HIGGINBOTHAM and JONES, Circuit Judges.

PER CURIAM:*

Plaintiff Otha Thomas filed a lawsuit alleging excessive

police force in violation of 42 U.S.C. § 1983, the Fourth and

Fifteenth Amendments, and state law negligence. The jury found

in favor of the defendants, the City of Monroe and three city
2

police officers. Thomas appealed. For the reasons stated below,

we affirm.

Background

On June 28, 1993, Otha Thomas was arrested for disturbing

the peace at his residence at the Windsor Inn, in Monroe,

Louisiana. The arresting officers were Vincent Guiterrez, Billy

Powell, and Exlena Thompson of the Monroe Police Department.

That night, Cathy Colvin, an employee of the Windsor Inn,

received complaints from tenants that an intoxicated person was

making loud noises and knocking on doors. She called the

security guard, Anthony Washington, and sent him to check on the

matter. Washington called Colvin and suggested that she call the

Monroe Police Department, which she did.

Guiterrez was dispatched to the Windsor Inn and met his

backup, Powell and Thompson, near Thomas’s apartment. The events

after that point are contested. The officers and Washington

testified that Thomas invited the officers in, there was a minor

tussle when he resisted arrest, and then they handcuffed him and

took him to the station. Thomas testified that he did not invite

them in, but came out to the parking lot, where one of the

officers hit him from behind on the neck, causing him to fall

down, and then hit him again while he was on the ground, finally

dragging him to the car.

At the jail, the jailers refused to book Thomas because he

was too intoxicated. The officers then took Thomas to the
 

1Reeves v. AcroMed Corp., 103 F.3d 442, 445 (5th Cir. 1997)

(quoting Boeing Co. v. Shipman, 411 F.2d 365 (5th Cir. 1969)). 

 

2Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). 

3

hospital and waited until they were told that he would not be

released that night. Thomas was diagnosed with a spinal injury

that has seriously handicapped him since. Thomas’s blood alcohol

level when he was checked into the hospital was 254 MG/DL.

Discussion

“[A] jury verdict will not be overturned unless the facts

and inferences point so strongly and overwhelmingly in favor of

one party that the court believes that reasonable [jurors] could

not arrive at a contrary verdict.”1 “Credibility determinations,

the weighing of the evidence, and the drawing of legitimate

inferences from the facts are jury functions, not those of a

judge ....”2

A. Sufficiency of the evidence

1. Did the jury err in finding in favor of the defendants on

the question of excessive force?

The elements of an excessive force claim are (1)the 

plaintiff suffered an injury, (2) which resulted directly and

solely from the use of force that was clearly excessive to the
 

3Spann v. Rainey, 987 F.2d 1110, 1115 (5th Cir. 1993). 

4

need; and (3) the excessiveness of the force was objectively

unreasonable.3

Thomas testified that he had been drinking during the

evening and felt dizzy while walking to his apartment from the

grocery store. He knocked on doors, trying to get someone’s

attention, and then had to sit down for a while. After a few

minutes, he got up and went inside. According to Thomas, when

the officers arrived, Thomas went outside to the parking lot in

front of his apartment -- the officers were never in his

apartment that night. He stated that one of the officers struck

him from behind for no reason and while he was on the ground they

stepped on his hand and struck him on the feet and shoulders. He

testified that the officers then stood him up and let him fall

several times, as he could not stand on his own. Thomas’ wife,

who was not present at the scene, testified that she later

noticed that the shorts he had been wearing were stained with

grease and dirt.

The officers and the security guard testified that the

incident occurred in Thomas’s apartment. All testified that

Thomas opened the door, left it open, and then either verbally

invited the officers or waved them in. All testified that Thomas

offered “mild” or passive resistance, jerking his arm away from

Guiterrez when Guiterrez advised him he was under arrest and

grabbed his arm. When Thomas jerked his arm away, they both fell

onto the bed. The four accounts were slightly inconsistent on
5

the question of whether Thomas and Guiterrez rolled from the bed

to the floor or remained on the bed. All four testified that the

only force used was to restrain Thomas long enough for him to be

handcuffed. They stated that Thomas was carried, not dragged,

from the apartment to the car and then to the jail. 

The only other evidence presented was medical testimony. 

Thomas called both Dr. Armistead and Dr. Nanda, experts in the

field of neurology. Dr. Armistead examined Thomas six months

after the incident for disability purposes, and again just before

trial. Dr. Armistead testified that Thomas had a congenital

spinal condition with degenerative changes which made him

predisposed to injury from trauma. When asked if a spinal

contusion could result if a person with Thomas’ condition slipped

and fell, he agreed it was possible, though later said it was not

likely. He agreed that the following hypothetical, proposed by

defense counsel, was possible: An intoxicated man falls while

walking, causing a trauma to his spinal cord, such that he cannot

move for two or three minutes; then he gets back up and continues

to his apartment; then sometime later the edema (swelling) from

the trauma has reached a point to where it is now impinging on

the spinal cord which could in turn cause a new onset of

paralysis. 

Dr. Nanda examined Thomas when he arrived at LSU Medical

Center in Shreveport the day after the incident and treated him

during his stay there. Dr. Nanda testified that any kind of fall

or injury could have caused Thomas’ injury: “Anything, you know. 
 

4Haun v. Ideal Indus. Inc., 81 F.3d 541, 547 (5th Cir. 1996)

(citation omitted).

 

5Barlow v. City of New Orleans, 241 So.2d 501, 504 (La.

1970).

6

You can slip and fall and that is trauma. Any form of violent

action is trauma, really I mean. But it can depend. Sometimes a

minor trauma can cause it; sometimes a severe trauma can cause

it.” The defense’s theory was that Thomas injury was caused

either by a slip and fall earlier in the evening, at the time

Thomas said he was dizzy and had to sit down, or by falling off

the bed during the scuffle with Guiterrez. Neither version

involves excessive force on the part of the police.

The experts’ testimony could support either party’s version

of the events. The issue reduces to one of credibility. Such

questions are the quintessential function of the jury. As this

Court has stated “[t]he jury heard both sides and the jury spoke.

... There were clearly two sides to this case. The jury believed

Haun and his evidence; it did not believe Ideal. Consequently,

the jury’s verdict ... is affirmed.”4

2. Did the jury err by finding in favor of the defendants on

the issue of negligence?

Thomas argues that the jury could not have reasonably found

in favor of the defendants on the negligence claim because the

police officers owed a high level of care to him. When an

intoxicated person is taken into custody, a greater degree of

care is owed to him.5 However, this does not mean that officers
 

6Mathieu v. Imperial Toy Corp., 646 So.2d 318, 322 (La.

1994).

 

7649 F.2d 1049 (5th Cir. 1981).

7

become strictly liable for injuries, nor does the severity of the

condition determine that it was caused by negligence. The

standard is “reasonableness under the totality of the

circumstances.”6 Thomas’ claim for negligence rests on the same

evidence as his claim of excessive force. As discussed above,

the evidence was sufficient to support the jury’s finding for the

defendants. 

B. Procedural objections

Thomas argues that there were several procedural errors

during the trial. The defendants argue that the procedural

issues raised by Thomas cannot be considered because they were

not referred to in the notice of appeal, citing C.A. May Marine

Supply Company v. Brunswick Corporation.7 However, May Marine

and the cases which follow it deal with the situation where the

appellant appealed one of two separate orders in a case, or a

motion was made after judgment had been entered. In this case,

Thomas’ notice of appeal stated that he was appealing “the Order

entered in this action on June 10, 1997, in favor of City of

Monroe, Vincent Guiterrez, Billy Powell, and Exlena Thompson,

denying plaintiff’s claims after trial by jury.” Rule 3(c)

requires that the notice of appeal: (1) specify the parties

taking the appeal by naming each appellant; (2) designate the
 

8Schweitzer v. Advanced Telemarketing Corp., 104 F.3d 761,

763 (5th Cir. 1997); F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th

Cir. 1994). 

8

judgment, order, or part thereof appealed from; and (3) designate

the court to which the appeal is to. Thomas’s notice was

sufficient to cover the procedural issues that he had objected to

during the trial leading up to the judgment being appealed.

1. Did the trial court err in the jury instructions?

Thomas argues that the court erred in several respects

during the jury instructions. An appellant must demonstrate that

the charge as a whole created substantial and ineradicable doubt

whether the jury was properly guided in its deliberations. Even

if the instructions were erroneous, the verdict will not be

reversed if, based upon the entire record, the challenged

instruction could not have affected the outcome. Further, if the

challenger to the instruction proposed another instruction to the

court, their proposed instruction must have correctly stated the

law.8

a. By not instructing the jury on a citizen’s purported right

to resist an illegal entry?

Thomas requested an instruction that a citizen has a right

to resist an illegal entry into one’s domicile, citing Louisiana

Revised Statute 14:18 and 14:19 in support. After discussion in

chambers, the court denied the request. Revised Statute 14:18

provides statutory justification for certain acts, including when
 

9224 U.S. 89, 98-99 (1912)

9

the offender’s conduct is in defense of persons or property under

any of the circumstances described in Articles 19 through 22. 

Regarding defense of property, Revised Statute 14:19 provides

justification in defense of “a forcible offense or trespass”

against property.

In this case, there was no evidence of “forcible offense or

trespass.” Thomas testified that the officers never entered his

apartment. All the other witnesses testified that Thomas left

the door open and invited the officers in, verbally or with a

hand motion. Even if the statutes could be used to support the

requested instruction, which is not clear, it could not have

affected the outcome of the case. 

b. By not instructing the jury on res ipsa loquitur?

The Supreme Court set out the standard for res ipsa loquitur

in San Juan Light & Transit Co. v. Requena:

[W]hen a thing which causes injury, without

fault of the injured person, is shown to be

under the exclusive control of the defendant,

and the injury is such as, in the ordinary

course of things, does not occur if the one

having such control uses proper care, it

affords reasonable evidence, in the absence

of an explanation, that the injury arose from

the defendant’s want of care.9

To be applicable, the plaintiff must show that the thing which

caused the injury was under the exclusive control of the

defendant or that the defendant has superior means for
 

10Id.; Fruge v. Penrod Drilling Co., 918 F.2d 1163, 1167

(5th Cir. 1990).

10

determining the cause of the accident.10 Neither factor is

present in this case. The evidence showed that Thomas was

injured sometime that night, and both experts agreed that it

could have occurred before the police even arrived, by his

falling due to his intoxicated condition. The mere fact that an

injury occurred and the parties disagree as to the cause does not

merit an instruction on res ipsa loquitor.

c. By not instructing the jury on conditions for police entry?

Thomas argues that the trial court erred in refusing to give

a jury instruction that police may enter a dwelling only when

armed with a warrant, consent or when exigent circumstances

exists. However, the trial court did so instruct the jury. 

Thomas’s brief quotes the court’s statement that the police may

forcibly enter a dwelling to make a lawful arrest; this was in

the context of “emergency situations” and does not detract from

the court’s clear statement of the requirements for police entry.

2. Closing arguments

Thomas argues that the court erred in its rulings on two

objections during closing arguments. When reviewing claims based

on alleged improprieties in closing arguments, the entire

argument should be reviewed within the context of the court’s

ruling on objections, the jury charge, and any corrective
 

11Guaranty Serv. Corp. v. American Employers’ Ins. Co., 893

F.3d 725, 729 (5th Cir. 1990). 

 

12Id. 

11

measures applied by the trial court.11 Alleged improprieties may

be cured by an admonition or charge to the jury.12

a. Rejecting plaintiff’s objection to defendants’ argument

Counsel for the officers stated during closing that “[m]ost

people are very respectful to police officers, and when one

knocks on the door, they generally invite them in. ... You hear

all the time of stops made on the interstate where the driver of

the vehicle invites the police to search their vehicle.” 

Thomas’s counsel objected, and defense counsel responded that

“It’s an analogy on my part, not a fact in evidence.” At that

point, the judge stated “Well, I’ll instruct the jury that there

has been no evidence of any such things that happen. What

counsel says is not evidence.” The jury instructions given

afterward included an instruction that “statement and arguments

of the attorneys are not evidence and are not instructions on the

law. They are intended only to assist the jury in understanding

the evidence and the parties’ contentions.” 

Defense counsel’s comment was immediately offset by the

judge’s statement in the jury’s presence that the attorney’s

statements were not evidence, which was later emphasized in the

jury instructions. Any impropriety was sufficiently cured.
12

b. Sustaining objection to plaintiff’s closing arguments

In his closing, counsel for Thomas stated, “It’s kind of

odd, that Guiterrez left the hospital at 3:30 in the morning and

the first report of the police beating up Mr. Thomas is at 4:00

a.m.” Defense counsel objected in order to clarify that the

mention of a fight was in the hospital record, not a police

report. Thomas’s counsel then stated that the statement in the

report had been made by Thomas. Defense counsel objected again

because there had been no evidence that Thomas made any statement

at the hospital that night. The trial court sustained the

objection.

Thomas’s counsel argues that he was prevented from making

the important point that Thomas feared the police and made no

report until after the police left. However, he made no attempt

to get facts to support this argument into evidence during the

trial; he neither asked Thomas whether he had made such a

statement nor did he call anyone from the hospital to testify. 

Instead, counsel attempted to introduce the evidence himself

during his closing, which was properly objected to and sustained

by the court.

3. Did the court err in not accepting Ed Allen as an expert

witness?
 

13Christophersen v. Allied-Signal Corp., 939 F.2d 1106, 1109

(5th Cir. 1991). 

 

14See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993).

 

15 52 F.3d 1311, 1317 (5th Cir. 1995).

13

The trial court’s refusal to allow a proffered expert to

testify is reviewed for abuse of discretion.13 Federal Rules of

Evidence 702 provides that a witness may be qualified as an

expert based on any of the following: knowledge, skill,

experience, training or education.14

In this case, Allen was tendered as an expert in the area of

police conduct relative to entry of a residence, use of force,

excessive force and standards of care for custody of intoxicated

people. Allen has over 20 years of experience as a deputy

sheriff, but testified that he had not dealt in those areas very

often, he did not instruct people in those areas, and he had no

special training in those areas. The trial court determined that

Allen was not qualified as an expert in those areas.

Thomas basically argues that years of experience as a police

officer qualify that officer as an expert in any area of law

enforcement, citing Satcher v. Honda Motor Company.

15 However,

in Satcher, the officer who testified had experience in the

specific area at issue -- he testified on lower leg protection in

motor cycle accidents, and he had investigated hundreds of

motorcycle accidents. General experience as a police officer,

standing alone, is not sufficient to qualify the officer as an

expert in every area of law enforcement, and the trial court did
14

not abuse its discretion in ruling that Allen was not qualified

to testify as an expert in the areas at issue in this case.

Sufficient evidence supports the jury’s verdict, and the

lower court did not err in its rulings during the trial. The

trial judge’s entry of judgment in accordance with the jury

verdict is AFFIRMED.