“his appeal lacks arguable merit and is therefore frivolous”
How later courts described this case
- “his appeal lacks arguable merit and is therefore frivolous”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-30193
Conference Calendar
__________________
JOHN POULLARD,
Plaintiff-Appellant,
versus
LONNIE EDMOND, Lieutenant, and
DAVID BLANCHARD, Sergeant,
Defendants-Appellees.
- - - - - - - - - -
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 92-CV-270
- - - - - - - - - -
August 22, 1995
Before KING, JOLLY, and WIENER, Circuit Judges.
PER CURIAM:*
IT IS ORDERED that John Poullard's motions for leave to
proceed in forma pauperis (IFP) and for preparation of the trial
transcript at government expense are DENIED, because his appeal
lacks arguable merit and is therefore frivolous. See Howard v.
King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because the appeal
is frivolous, IT IS FURTHER ORDERED that the appeal is DISMISSED.
See 5th Cir. R. 42.2.
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
No. 95-30193
-2-
Poullard contends that the district court plainly erred by
submitting the second set of interrogatories to the jury and by
entering judgment for the appellees based on the finding that he
did not sustain a significant injury. The record does not show,
and Poullard does not assert, that he objected to this procedure
in the district court.
The procedure followed by the district court was in
accordance with this court's decisions relative to the qualified-
immunity defense, in the context of a jury trial. A "bifurcated
analysis" is appropriate for determining the merits of such a
defense. Rankin v. Klevenhagen, 5 F.3d 103, 105, 108-09 (5th
Cir. 1993). First there must be a determination whether the
plaintiff proved "the violation of a clearly established
constitutional right." See id. at 105 (quoting Siegert v.
Gilley, 500 U.S. 226, 231 (1991)). This was determined by the
jury's answer to the first interrogatory.
Consequently, it became appropriate for the jury to
determine whether "the [appellees'] conduct was objectively
reasonable, because [e]ven if an official's conduct violates a
constitutional right, he is entitled to qualified immunity if the
conduct was objectively reasonable." Rankin, id. (citations and
quotation marks omitted). "The objective reasonableness of an
official's conduct must be measured with reference to the law as
it existed at the time of the conduct in question." Mouille v.
City of Live Oak, 918 F.2d 548, 551 (5th Cir. 1990), quoted in
Rankin, 5 F.3d at 108.
No. 95-30193
-3-
In December 1990, this court's standard for Eighth Amendment
excessive-force claims was as stated in Huguet v. Barnett, 900
F.2d 838, 841 (5th Cir. 1990). Under Huguet, the plaintiff had
to prove that he sustained "a significant injury," which resulted
from the use of clearly excessive and objectively unreasonable
force, "constitut[ing] an unnecessary and wanton infliction of
pain." Id.
In its answer to the first interrogatory, the jury found for
Poullard on all of these elements except the first. In its
answer to the second set of interrogatories, the jury found,
however, that he did not sustain "a significant injury."
Accordingly, the district court did not err in entering judgment
for the defendant-appellees. Poullard's appeal is frivolous as a
matter of law. See Howard v. King, 707 F.2d at 219-20.
IFP AND TRANSCRIPT DENIED; APPEAL DISMISSED.