Marvin Livingston v. Edward Adams, et al

Filing

PER CURIAM OPINION FILED - THE COURT: ROGER L. WOLLMAN, MICHAEL J. MELLOY and LAVENSKI R. SMITH (UNPUBLISHED) [3907782] [11-2400]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 11-2400
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Marvin Livingston,

*
*
Appellant,
*
* Appeal from the United States
v.
* District Court for the
* Eastern District of Arkansas.
Edward Adams, Originally Sued As Ed *
Adams; Cynthia Hunter, Originally
* [UNPUBLISHED]
Sued As Hunter; Emmett Johnson,
*
Originally Sued As Johnson; Sandra
*
Dolphin, Originally Sued As Dolphin, *
*
Appellees.
*
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Submitted: April 5, 2012
Filed: May 3, 2012
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Before WOLLMAN, MELLOY, and SMITH, Circuit Judges.
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PER CURIAM.
Arkansas inmate Marvin Livingston appeals the district court’s1 judgment
dismissing his 42 U.S.C. § 1983 action after an evidentiary hearing. Following
1

The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas, adopting the report and recommendations of the Honorable
Jerome T. Kearney, United States Magistrate Judge for the Eastern District of
Arkansas.

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Date Filed: 05/03/2012 Entry ID: 3907782

careful review, we conclude that the district court did not clearly err in finding that
defendant Edward Adams did not use excessive force during a January 27, 2009
incident, given the evidence of Livingston’s aggressive behavior and Adams’s use
of an amount of force he deemed necessary to subdue Livingston. See Hartsfield v.
Colburn, 491 F.3d 394, 395-96 (8th Cir. 2007) (where there is no jury demand,
evidentiary hearing before magistrate judge in inmate’s conditions-of-confinement
case “is the equivalent of a bench trial”; appellate court reviews district court’s
factual findings for clear error and its legal conclusions de novo); Andrews v. Neer,
253 F.3d 1052, 1060-61 & n.7 (8th Cir. 2001) (standard for evaluating
excessive-force claims of pretrial detainees). We also agree with the district court
that Livingston’s failure to establish an excessive-force claim against Adams is fatal
to his claim that the other defendants should have intervened. See Hicks v. Norwood,
640 F.3d 839, 843 (8th Cir. 2011). Further, to the extent Livingston is challenging
any discovery rulings, we find no abuse of discretion. See Lee v. Armontrout, 991
F.2d 487, 489 (8th Cir. 1993) (per curiam) (standard of review).
Accordingly, the judgment is affirmed. See 8th Cir. R. 47B.
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Date Filed: 05/03/2012 Entry ID: 3907782