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Bender v. Brumley

decided: August 24, 1993.


Appeal from the United States District Court for the Western District of Louisiana. This opinion substituted by court for withdrawn opinion of July 12, 1993.

En Banc. Before Reynaldo G. Garza, Williams, and Jones, Circuit Judges.

Author: Williams


On petition for rehearing filed by defendants-appellees, we withdraw our previous opinion dated July 12, 1993, and substitute the following opinion in its place:

This 42 U.S.C. § 1983 case asserts the police used excessive force in dealing with a pre-trial detainee. The critical, narrow issue before us is whether it was reversible error for the district court to instruct the jury that it must find that Raymond Bender suffered "significant injury" before it could return a verdict in his favor. We conclude that the jury was inescapably misguided by the instruction, which ran afoul of the Supreme Court's recent decision in Hudson v. McMillian, -- U.S. --, 112 S. Ct. 995, 117 L. Ed. 2d 156 (1992), as explicated by this Circuit in Valencia v. Wiggins, 981 F.2d 1440, 1443-47 (5th Cir.), cert. denied, 125 L. Ed. 2d 691, 61 U.S.L.W. 3852, 113 S. Ct. 2998 (1993). Accordingly, we remand Bender's federal excessive force claim to the district court for a new trial. We affirm the judgments entered against all his other claims.


On February 20, 1989, Raymond Louis Bender surrendered himself as a suspect in the killing of Deputy Jimmy Kinney of the Sabine Parish Sheriff's Department. Deputy Kinney had been killed by a single shotgun blast to the chest as he sat in his patrol car a few hours earlier.*fn1

Later that day, Bender was taken from his cell at the Sabine Parish jail and escorted by Deputy Jack Staton to the interrogation room where they were met by Staton's fellow defendants, Deputies James McComic and Joe Byles, and Officer David Remedies of the Zwolle Police Department. What transpired inside the interrogation room is vigorously disputed. The officers maintain that Bender grew erratic at various times during the questioning and began flailing his arms; a brief scuffle ensued, and the officers used minimal force to restrain him. The Defendants acknowledge that everyone in the room was upset, but they emphatically deny that unreasonable force was used or that a beating took place. The officers urge that Bender's claims of physical abuse are belied by his failure to seek medical attention until May 1990, more than fifteen months following the alleged mistreatment, and then for an ailment wholly unrelated to the alleged beating.

Bender asserts, on the other hand, that upon his invocation of his Fifth Amendment right to remain silent, Deputy McComic threw hot coffee in his face to compel him to speak and hit him on the head, knocking him to the floor. While on the floor, Bender claims that Deputy Staton managed several blows and kicks before dragging him out of the room by his hair. Outside the room, Bender contends the beating continued -- Staton smacked him between the eyes, knocking him again to the floor, and Officer Remedies hit and kicked Bender's head and rear. At this point, says Bender, McComic admonished Staton and Officer Remedies to stop striking Bender with closed fists because that might cause severe injuries. Staton then stomped on Bender's back before he was taken back into the interrogation room where Deputy Byles saw Bender's bloody nose and asked what had happened. Bender claims that McComic responded that Bender had fallen off the stairs, whereupon Byles called Bender a nigger and threatened to shoot him if he tried to run away.

Bender also maintains that Remedies made a statement that he saw Staton hit Bender, and emphasizes that a Louisiana state court Judge testified at trial that when she, as an assistant district attorney for Sabine Parish, questioned Remedies about the incident, he told her that Staton struck Bender "once or twice."*fn2 Moreover, Bender insists, witnesses can verify that he "looked kind of roughed up" after his trip to the interrogation room. He claims that his nose bled profusely and felt as if it were broken, that he lost complete feeling in his legs, and that two officers had to hold him up as he returned to his cell. Additionally, he asserts that he and/or his family repeatedly requested medical attention, which was at all times refused. For their part, however, the Defendants presented witnesses who refuted Bender's claims of threats and physical abuse.

Exactly one year from the date of Bender's arrest for Deputy Kinney's murder and the alleged beating, Bender filed suit against the four officers and Sheriff James Brumley asserting various causes of action arising under the U.S. Constitution, 42 U.S.C. §§ 1983 and 1985(3), and Louisiana state law. At trial's end, the jury was asked a series of questions. Regarding Bender's federal claims, the jury was asked whether McComic, Staton, and Remedies used excessive force and whether Sheriff Brumley withheld medical care. Regarding Bender's pendent state law claims, the jury was asked whether any of the five defendants used excessive force as defined under Louisiana law or intentionally inflicted emotional distress. The jury rejected Bender's plea for compensatory and punitive damages and returned a verdict completely exonerating the officers.*fn3 Judgment was entered, and Bender timely appeals the dismissal. He claims three principal grounds. He argues that the district court erred in (1) denying his motions for summary judgment and directed verdict, (2) admitting potentially prejudicial testimony concerning Deputy Kinney's murder, and (3) instructing the jury that proof of significant injury was necessary to support a valid § 1983 claim. We address these contentions in turn.

II. DISCUSSION A. The Denial of Bender's Motions Prior to trial, Bender filed a motion for summary judgment on his federal claims of excessive force and deprivation of medical attention. Noting that "the testimony of both camps is diametrically opposed," the district court denied the motion, but partially granted Defendants' Motion for Dismissal or Alternatively for Summary Judgment by dismissing all claims for verbal threats and harassment.*fn4 At the close of the officers' evidence at trial, Bender sought a directed verdict as to his pendent state law claims of excessive force and intentional infliction of emotional distress. This motion, too, was denied.

On appeal, Bender persists that the savage beating he endured was supported by "concrete proof" and that the trial court's refusal to grant his motions was error in the face of "the objective physical evidence." Bender argues strenuously that a review of the entire record shows that,

any reasonable jury could have found that Appellees in an act of vengeance maliciously and sadistically used excessive force against him in the guise of coercing a confession; Appellant suffered physical pain, emotional distress, and mental anguish; Appellant was denied medical treatment for a period of fifteen (15) months following the assault; ...

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