Jeffery v. Sauseda

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-40533
Summary Calendar
HORACE JEFFERY
Plaintiff-Appellant,
versus
MICHAEL SAUSEDA, Correctional Officer, Beto I,
Defendant-Appellee.
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Appeal from the United States District Court
For the Eastern District of Texas
(6:96-CV-290)
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ON PETITION FOR REHEARING
March 27, 1998
Before DUHÉ, DeMOSS, DENNIS, Circuit Judges
PER CURIAM:*
Appellee Michael Sauseda’s petition for rehearing is denied.
Our panel decision is withdrawn and the following opinion is
substituted.
Horace Jeffery, Texas prisoner # 669340, filed a civil rights
complaint pursuant to 42 U.S.C. § 1983 against Texas Department of
Criminal Justice - Institutional Division (TDCJ-ID) guard Michael
Sauseda alleging that Sauseda used excessive force against him when
*
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this opinion should not be published and is not precedent except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.
No. 97-40533
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Sauseda came to escort Jeffery to a disciplinary hearing. Prior to
the filing of an answer, Jeffery filed a jury demand in compliance
with Rule 38(b) of the Federal Rules of Civil Procedure. The
magistrate judge issued an order scheduling a bench trial. This
proceeding was subsequently referred to as an evidentiary hearing
under Flowers v. Phelps, 956 F.2d 488 (5th Cir. 1992), in the
clerk’s minute entry, the magistrate judge’s report, and the
judgment of the district court. Based on the evidence presented at
this hearing, the magistrate judge recommended that Jeffery’s
action be dismissed. Jeffery specifically objected to having the
trial conducted without a jury. The district court adopted the
magistrate judge’s recommendation and dismissed Jeffery’s complaint
with prejudice without mention of the possible denial of Jeffery’s
right to a jury. Jeffery appeals arguing, inter alia, that he was
erroneously denied a jury trial.
This court has stated “the right to a jury trial is a
fundamental right,” and “courts should indulge every reasonable
presumption against waiver.” McAfee v. Martin, 63 F.3d 436, 437-38
(5th Cir. 1995)(internal quotations and citations omitted). Having
considered the briefs and the relevant parts of the record, we
conclude that Jeffery properly requested a jury trial and
subsequently did not waive his jury demand by participating in the
Flowers hearing without objection. See id. at 437-38.
This does not end our inquiry for we must decide whether the
error in denying Jeffery jury trial was harmless. See McDonald v.
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Steward, 132 F.3d 225,230 (5th Cir. 1998). “‘[T]he error is
harmless if the evidence could not have withstood a motion for a
directed verdict.’” Id. (quoting Lewis v. Thigpen, 767 F.2d 252,
260 (5th Cir. 1985)). A directed verdict should be granted “‘[i]f
the facts and inferences point so strongly and overwhelmingly in
favor of one party that the Court believes that reasonable men
could not arrive at a contrary verdict.’” Id. (quoting Boeing v.
Shipman, 411 F.2d 365, 374 (5th Cir. 1969)(en banc)).
To prevail on an Eighth Amendment claim of excessive force, a
plaintiff must establish “that force was not ‘applied in a good
faith effort to maintain or restore discipline, [but] maliciously
and sadistically to cause harm’ and that he suffered an injury.”
Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir. 1996)(quoting Hudson
v. McMillian, 503 U.S. 1, 7 (1992)).
The evidence presented at the Flowers hearing shows the
following. On August 17, 1995, Officer Sauseda and another officer
arrived at Jeffery’s cell to escort Jeffery to a disciplinary
hearing. Jeffery was searched and handcuffed. As Sauseda prepared
to escort Jeffery out of the cell, Jeffery reached for papers that
were on his bunk. Sauseda asked to see the papers. There was
conflicting testimony on the events that followed.
The plaintiff testified that Sauseda grabbed the papers from
his hand and read the papers. Jeffery said he protested that
Sauseda had no right to read his legal papers and requested a
ranking officer. According to Jeffery, Officer Sauseda then
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grabbed Jeffery by the neck, pushed him into the third floor
railing, and threatened to throw him over the rail. Sauseda then
pushed Jeffery into the wall and the cell door and pinned Jeffery
down by pressing his elbow into the back of Jeffery’s neck.
Officer Sauseda paints a different picture of events. Sauseda
testified that he requested to see the papers. According to
Sauseda, Jeffery became belligerent. Jeffery initially refused to
give the papers to Sauseda, but ultimately complied. Sauseda then
scanned the papers, determined that they were legal in nature, and
returned the papers to Jeffery. According to Officer Sauseda,
Jeffery then charged towards Sauseda as they exited the cell and
pushed him against the third row railing. Officer Sauseda
testified that he feared that Jeffery would push him over the third
floor rail or throw himself over the rail. Sauseda reached around
the front of Jeffery, grabbed Jeffery’s forearm, turned Jeffery
around, and pinned him against the cell door and wall. Sauseda
held Jeffery until his ranking officer and the video camera he had
requested arrived.
Inmate Ricky Allen Demerson testified as a witness for the
plaintiff. In part, Demerson testified that he heard Jeffery tell
Sauseda not to read his papers. He also heard Sauseda respond that
he had a right to read the papers. According to Demerson, Sauseda
then grabbed Jeffery and slammed him against the wall and the cell
door. Demerson did not see Jeffery charge towards Sausdea or
threaten Sauseda. Demerson said he heard Jeffery ask Officer Allen
No. 97-40533
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to get a ranking officer. Demerson testified that Sauseda hit
Jeffery on the back of the neck with his elbow in an attempt to
hurt him.
The plaintiff’s medical records were introduced by the
defendant.
From a review of the evidence presented at the hearing, we
conclude that the record could support a finding that Officer
Sauseda’s use of force against Jeffery was “‘not . . . in a good-
faith effort to maintain or restore discipline, [but] maliciously
and sadistically to cause harm.’” Id. However, Jeffery must also
show that he suffered some injury. See Knight v. Caldwell, 970
F.2d 1430, 1432 (5th Cir. 1992), cert. denied, 507 U.S. 926 (1993).
As this court has noted:
The Supreme Court’s decision [in Hudson v.
McMillian, 503 U.S. 1(1992)] makes clear that we can no
longer require persons to prove “significant injury,” as
we had used that term for years, under section 1983. The
Court’s holding, however, does not affect the rule that
requires proof of injury, albeit significant or
insignificant. In fact, the Supreme Court specifically
denied constitutional protection for “de minimis use of
physical force, provided that the use of force is not of
a sort repugnant to the conscience of mankind.” Hudson,
503 U.S. at ---.
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Id. The only evidence submitted at the hearing on this issue was
Jeffery’s medical records.2 The medical records show that, on the
date of the use of force, Jeffery complained that his handcuffs
were too tight. The examining nurse could find no injury. The
medical records also show that, four days after the use of force,
Jeffery was brought to the infirmary complaining of back pain. On
the sixth and seventh day following the use of force, Jeffery was
brought to the infirmary complaining that he was experiencing
nausea and headaches and was spitting up blood as a result of the
use of force. From a review of this evidence we cannot say that a
reasonable jury could not find that Jeffery suffered a
constitutionally cognizable injury. Compare Flowers v. Phelps, 956
F.2d 488 (5th Cir. 1992) (moderate swelling and probable sprain of
ankle, small abrasion, and a limited range of motion due to pain
not de minimis injury), modified on other grounds, 964 F.2d 400(5th Cir. 1992), with Siglar v. Hightower, 112 F.3d 191, 193 (5th
2
At the Spears hearing, the magistrate asked Jeffery
what injury he had sustained as a result of the use of force.
Jeffery stated that he had experienced numbness in his arm caused
by the handcuffs being too tight. He also testified that he had
experienced headaches, lower back pain, and numbness from being
slammed against the wall and from having Sauseda’s elbow pressed
to the back of Jeffery’s neck. (Jeffery indicated that Sauseda’s
acts may have aggravated an existing injury, a bullet lodged in
the back of Jeffery’s neck.) The magistrate then asked a nurse
to read Jeffery’s medical records for August 17, 1995. The
medical records indicated that Jeffery was examined immediately
following the use of force and was found to have suffered no
injury. At the hearing that followed, Jeffery presented no
evidence of injury. Defendant-Sauseda introduced Jeffery’s
medical records.
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Cir. 1997) (sore, bruised ear that lasted for three days was de
minimis injury).
Accordingly, we conclude that Jeffery presented sufficient
evidence to withstand a motion for a directed verdict on his Eighth
Amendment claim. The error in denying a jury trial was not
harmless.
For the foregoing reasons, the judgment of the district court
is REVERSED. Jeffery has requested counsel be appointed on appeal
and has requested that he be granted a default judgment because the
defendant’s brief was late under Rule 31 of the Federal Rules of
Appellate Procedure. Neither motion is well taken and both are
DENIED. Jeffery also moves to supplement the record on appeal.
That motion is DENIED because it contains materials not presented
to the district court. See United States v. Okoronkwo, 46 F.3d
426, 435 (5th Cir.), cert. denied, -- U.S. --, 116 S. Ct. 107(1995). Sauseda’s motion to supplement the record on appeal to
include exhibits presented to the district court is GRANTED.