Summary
dismissing as frivolous plaintiff's state created danger claims, which were based on "a groundless legal premise" and had "no arguable basis in law"
Summary of this case from Olivia v. BarbourOpinion
Civil Action No. 5:03-CV-126-BG.
October 21, 2004
ORDER OF DISMISSAL
Plaintiff Marcelino Martinez, an inmate in the custody of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID), filed this lawsuit pursuant to 42 U.S.C. § 1983 and proceeds pro se and in forma pauperis against a number of Defendants who are TDCJ-ID employees.
A court may dismiss a prisoner's in forma pauperis complaint if the prisoner's claim is frivolous, malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C. § 1915A(b) (2004); 42 U.S.C. § 1997e(c). Dismissals may be based on an investigation of the Plaintiff's allegations, Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), and on evidence obtained from authenticated prison records, Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995).
The court held an evidentiary hearing on September 9, 2003, pursuant to Spears, 766 F.2d at 181-82. After reviewing Plaintiff's sworn testimony given at the hearing, along with his pleadings and authenticated prison records, this court has determined that Plaintiff's claims against Defendants should be dismissed.
I. Procedural Background
Plaintiff initially filed this lawsuit in the Western District of Texas, alleging that his constitutional rights were violated by a number of TDCJ-ID employees at the Connally and Smith Units. The Connally Unit is located in Karnes County and, therefore, within the jurisdiction of the Western District of Texas. The Smith Unit is located in Dawson County and, therefore, within the jurisdiction of the Northern District of Texas.
The Western District dismissed Plaintiff's claims against the Connally Unit Defendants and severed and transferred Plaintiff's claims against the Smith Unit Defendants to the Northern District of Texas, Lubbock Division. This court, therefore, addresses only Plaintiff's claims against the Smith Unit Defendants.
II. Plaintiff's Claims
Plaintiff alleges violations of his First Amendment right to access the courts; violation of his First and Fourteenth Amendment rights, which he claims occurred when he was transferred from the Smith Unit to the Montford Psychiatric Unit; and violations of his Eighth Amendment rights as a result of Defendants' failure to protect him from danger and from incidents of excessive force that allegedly occurred on an unspecified date in 1995 and on July 2, 2002. Plaintiff also alleges that Defendants subjected him to cruel and unusual punishment because they classified him as a high risk escapee; falsely charged and disciplined him for engaging in sexual conduct in public and for refusing to obey an order to stop; and threatened him and left him to stand on a public road in boxer shorts. He also complains that Defendants conspired and retaliated against him and subjected him to danger. He contends that they are liable under the theory of "state created danger."
III. Discussion
A. Exhaustion of Administrative Remedies
Congress has directed that "[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see Booth v. Churner, 532 U.S. 731, 739-40 (2001). Plaintiff's claims against all Defendants in this case are subject to Section 1997e(a) because they concern incidents that occurred in prison; therefore, he was required to exhaust his administrative remedies for each of his claims before instituting suit in federal court. See Porter v. Nussle, 534 U.S. 516, 532 (2002).
The TDCJ-ID system provides a two-step procedure under which prisoners may exhaust administrative remedies. Wendell v. Asher, 162 F.3d 887, 891 (5th Cir. 1998). Plaintiff utilized the TDCJ-ID grievance procedures only with regard to his access to courts claim and his claim of excessive force that allegedly occurred on July 7, 2002. Therefore, only these two claims are properly before this court for adjudication. Plaintiff's remaining claims must be dismissed because he failed to exhaust administrative remedies before seeking judicial relief. See 42 U.S.C. § 1997e(a); Porter, 534 U.S. at 524. In addition and in the alternative, Plaintiff's claims should be dismissed for the additional reasons discussed in this Order.
The TDCJ-ID grievance system is as follows: "Step 1 requires the prisoner to submit an administrative grievance at the institutional level. After an investigation, the unit grievance investigator prepares a report and makes a recommendation to the final decision maker for step 1 of the process . . . Step 2 permits the prisoner to submit an appeal to the division grievance investigator with the Institutional Division of the Texas Department of Criminal Justice. After an investigation, the departmental grievance investigator prepares a report and makes a recommendation to the final decision maker for step 2 of the process . . . The grievance procedure takes approximately 90 days to exhaust. Prisoners are allowed 15 calendar days to file a step 1 grievance. The response to the step 1 grievance is due within forty days after receipt of the grievance. The prisoner then has ten days to submit an appeal. The response to the step 2 grievance is due within forty days after receipt of the prisoner's appeal." Wendell, 162 F.3d. 891 (citations omitted).
B. Plaintiff's First and Fourteenth Amendment Claims
1. Access to Courts
Plaintiff alleges that TDCJ-ID officials, including Defendants Anderson, Guyer, and Barboza, tampered with his legal mail and thereby violated his right to access the courts. Plaintiff's allegations border on the fantastical and include claims that the return receipt notices for his certified mail were returned to him without proper postmarking, that one return receipt notice included a signature but not a printed name, and that the return receipt notices were signed in different colors of ink. He also alleges that TDCJ-ID officials lost certain paperwork related to a prior suit filed with this court in 2001. In this regard, he complains that the court denied a motion for preliminary injunction and thereafter dismissed his suit.
In order to prevail on his access to the court claim, Plaintiff must prove an actual injury by showing that his case was prejudiced. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir. 1998). Although Plaintiff claims TDCJ-ID officials tampered with his mail, he does not claim that the alleged tampering harmed him or prejudiced his case, and the court's records show that he cannot do so. The records indicate that Plaintiff filed a § 1983 cause of action in January 2001, which was transferred to this court on January 11, 2001. Thereafter, Plaintiff filed a number of motions, including a motion for preliminary injunction, which this court denied. On April 18, 2001, Plaintiff filed a motion to dismiss his suit on grounds that the court had denied his request for preliminary injunction. The court granted Plaintiff's motion and dismissed his lawsuit on May 24, 2001. Therefore, contrary to Plaintiffs assertions, the court received the documents Plaintiff filed in his 2001 lawsuit.
A claim may be dismissed as frivolous if it lacks an arguable basis in law or fact. Nietzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). As the foregoing demonstrates, Plaintiff's allegations are clearly baseless; therefore, his First Amendment access to the courts claim is dismissed as frivolous. Denton v. Hernandez, 504 U.S. 25, 32-33 (1992) (citation and internal quotations omitted).
2. Transfer to the Montford Psychiatric Unit
Plaintiff claims that his Equal Protection rights and First Amendment rights relating to speech, religion, association, and assembly were violated when he was transferred to the Montford Psychiatric Unit in April 2001. According to the authenticated records, the events precipitating this transfer began when authorities at the Smith Unit Psychiatric Department were notified that Plaintiff believed TDCJ-ID used technology to infect his ear.
Plaintiff admits in his pleadings that he requested medical attention for an ear infection and that he blamed TDCJ-ID for the infections alleging that prison authorities placed biological chemicals in his food and used magnetic energy that penetrated his skin and released atoms into his body. Plaintiff claims that after making these allegations, Defendant Taylor, a Smith Unit psychiatrist, along with Defendant Mitchell and three corrections officers, questioned him about his knowledge regarding electronics and thereafter transferred him to the Montford Psychiatric Unit.
In regard to Plaintiff's First Amendment claim, an inmate retains his First Amendment rights so long as the exercise of such is not inconsistent with his status as a prisoner and does not adversely affect a legitimate state interest. See Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir. 1989) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974); Procunier v. Martinez, 416 U.S. 396, 413 (1974)). Thus, a prison's regulation or action in relation to the expression of First Amendment rights is valid if it is reasonably related to legitimate penological interests. Jackson, 864 F.2d at 1248 (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). There was a legitimate penalogical reason that Plaintiff was transferred to the Montford Psychiatric Unit after he alleged that TDCJ-ID officials infected his ear and experimented on inmates. Therefore, the facts do not support Plaintiff's First Amendment claim.
In regard to Plaintiff's Equal Protection claim, Plaintiff must allege and prove that he was treated differently from similarly situated individuals and that the unequal treatment stemmed from discriminatory intent. Taylor v. Johnson, 257 F.3d 470, 473 (5th Cir. 2001). Plaintiff has not alleged that he was treated differently from other inmates because of his race. He has not alleged that because of his psychiatric condition he was treated differently from inmates with health conditions that were not psychiatric in nature. Therefore, his claim has no merit. Further, prisoners have no liberty interest in being incarcerated in a particular institution, see Meachum v. Fano, 427 U.S. 215, 224-25 (1976), and "[n]o constitutional right exists to prevent the transfer of an inmate to a mental hospital." Jackson, 864 F.2d at 1250 (citing Vitek v. Jones, 445 U.S. 480, 488 (1980)).
The authenticated medical records show that Plaintiff has a schizoaffective disorder, bipolar disorder, psychotic disorder, and an antisocial personality.
C. Plaintiffs State-created Danger Claims
Plaintiff claims Defendants Horton and Gonzales placed him in danger when they used an inmate who was a member of the Arryan Brotherhood to attempt to kill him and that Defendants Castillo, Willis, Strong, and Bones placed him in danger when they told members of the Mexican Mafia that he had "snitched" on an inmate under investigation and that he was eavesdropping on the gang.
Plaintiff contends Defendant Doe violated his Eighth Amendment rights because she failed to protect him from danger and that she created a state danger for him and members of his family when she conducted a parole hearing outside his cell and within hearing distance of his enemies, including members of the Mexican Mafia. He claims Defendant Doe purposefully spoke about and identified certain parole information and facts, including the fact that his grandmother's house is his place of parole. He claims that this alerted his enemies to facts that could be used to harm him and members of his family and that Defendant Doe's actions placed him in danger and led to frustration that caused him to clench his teeth and chip his tooth and led him to make a four inch cut on his leg. Because Plaintiff has not identified Defendant Doe, this court cannot direct service of Plaintiff's suit on the proper party. Waldrop v. Lacey, No. CIV.A. 3-02-2347-M, 2003 WL 21500404, at *1-2 (N.D. Tex. Apr. 21, 2003). In addition, Plaintiff's claims against Defendant Doe should be dismissed as frivolous because "federal rules make no provision for joining fictitious defendants in an action under a federal statute." Id. (quoting Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956)).
Essentially, Plaintiff's failure to protect claim is grounded on his allegations that Defendant Doe's acts resulted in the possibility of harm by others and the harm he inflicted upon himself. Plaintiff has not alleged and the facts do not show that he alerted Defendant Doe to any danger he might have faced or that he asked her to hold the hearing in another location or that she otherwise knew that holding the hearing on Plaintiff's cell hall would pose a substantial risk of serious harm to him. Thus, Plaintiff has failed to show that Defendant Doe acted with deliberate indifference; therefore, his Eighth Amendment claim is frivolous. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Further, other than self-inflicted injuries, Plaintiff has not alleged that harm actually befell him or any members of his family as a result of Defendant Doe's actions. Finally, although Plaintiff cites Supreme Court precedent, which holds that an inmate "need not wait until he is actually assaulted to obtain relief," this legal standard applies to claims brought under the Eighth Amendment for injunctive relief. See Farmer, 511 U.S. at 845; Helling v. McKinney, 509 U.S. 25, 33 (1993). Plaintiff's claim against Defendant Doe is for damages rather than injunctive relief; therefore, this standard is inapplicable.
Plaintiff's state-created danger claims against the remaining defendants should also dismissed because they are based on a groundless legal premise. The Fifth Circuit has consistently declined to recognize the theory of state-created danger as a viable theory upon which state actors may be held liable for constitutional violations. See e.g., Rivera v. Houston Indep. Sch. Dist., 349 F.3d 244, 249 (5th Cir. 2003) (and cases cited therein). Because Plaintiff's state-created danger claims have no arguable basis in law, they must be dismissed as frivolous. 28 U.S.C § 1915(e)(2)(B); Neitzke, 490 U.S. 319, 327 (1989).
D. Eighth Amendment Claims of Cruel and Unusual Punishment
1. Defendant Thompson
Plaintiff claims his Eighth Amendment rights were violated when a prison official sprayed chemicals on him in order to make him leave his cell and later, while en route to the Smith Unit, when Defendant Thompson pointed a pistol at him and threatened his life. He claims that at the time Defendant Thompson threatened him, he was dressed only in boxer shorts, was barefoot, and was standing on a public road, that the chemicals were still burning him, and that he was shaking and weak from weight and blood loss. Plaintiff alleges that these events occurred on October 31, 1999, yet he filed his claim on May 5, 2003.
The statute of limitations for a suit brought under § 1983 is determined by the statute of limitations governing personal injuries under the applicable state law. Piotrowski v. City of Houston, 237 F.3d 567, 576 (5th Cir. 2001), cert. denied, 534 U.S. 820 (2001); Harris v. Hegmann, 198 F.3d 156-57 (5th Cir. 1999). Under Texas law, the statute of limitations for Plaintiff's claim is two years; therefore, Plaintiff filed his claim after the applicable statute of limitations expired. TEX. CIV. PRAC REM. CODE § 16.003(a) (2003); see Piotrowski, 237 F.3d at 576. "Where it is clear from the face of a complaint filed in forma pauperis that the claims asserted are barred by the applicable statute of limitations, those claims are properly dismissed." Gonzales v. Wyatt, 157 F.3d 1016, 1019-1020 (5th Cir. 1998) (citation omitted). Therefore, Plaintiff's claim against Defendant Thompson must be dismissed.
2. Defendant Garcia
Plaintiff claims Defendant Garcia filed false charges against him on June 7, 2002, charging him with engaging in sexual conduct in public and refusing to follow her order to stop. He argues that the charges constituted cruel and unusual punishment and that they were filed in "pure ill due to freedom of speech" and so that his enemies would know that parole was no longer possible. On June 11, 2002, a Smith Unit investigator held a hearing regarding the charges, at which Plaintiff pleaded not guilty to both offenses. At the conclusion of the hearing, Plaintiff was found guilty of engaging in sexual conduct in public but not guilty of refusing to follow Officer Garcia's order to stop. As punishment, he was reduced in class, lost 10 good time days, 15 recreation days, and 30 commissary days.
A § 1983 action is not a proper means for challenging punishment resulting from a prison disciplinary action. Clarke v. Stalder, 154 F.3d 186, 189 (5th Cir. 1998), cert. denied, 525 U.S. 1151 (1999). In order to pursue a civil rights action on this basis, the prisoner must show that the punishment imposed was reversed on appeal, expunged by executive order, or otherwise declared invalid in a state collateral proceeding or by writ of habeas corpus. Edwards v. Balisok, 520 U.S. 641, 643 (1997); Clarke, 154 F.3d at 189. Plaintiff has not alleged or shown that he met these prerequisites.
In addition, Plaintiff's Eighth Amendment claim regarding the charges and punishment levied against him should be dismissed because he has not established that his punishment deprived him of the "minimal civilized measure of life's necessities," Wilson v. Seiter, 501 U.S. 294, 298 (1991) (citation omitted), or that he had a right to engage in such conduct in his cell within the view of others. There is no constitutional right to engage in such conduct in public. Further, "[i]mprisonment necessarily entails a loss of manifold rights and liberties. A prisoner is not free to do that which he might wish to do, nor may he do allowable things at a time and in a manner he might prefer." Muhammad v. Lynaugh, 966 F.2d 901, 902 (1992); see also Bell v. Wolfish, 441 U.S. 520, 537 ("[l]oss of freedom of choice and privacy are inherent incidents of confinement . . ."). Thus, prisoners do not enjoy the same privacy rights accorded to those individuals not incarcerated and do not have a subjective expectation of privacy in their prison cells with regard to cell searches. See Hudson v. Palmer, 468 U.S. 517, 526 (1984).
To the extent that Plaintiff alleges that the discipline was "pure ill due to freedom of speech" or retaliation for the exercise of his First Amendment rights, he has not alleged facts that would support such a claim. To prevail on a claim of retaliation, a prisoner must establish (1) a specific constitutional right, (2) the defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and (4) causation. McDonald v. Steward, 132 F.3d 225, 231 (5th Cir. 1998). Claims of retaliation are regarded by federal courts with skepticism, and federal courts must carefully scrutinize such claims in order to guard against inmates use of such claim as shields with which they may insulate themselves from disciplinary actions. Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Mere conclusory allegations of retaliation are not enough to establish a claim. Jones v. Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (internal citations omitted). Accordingly, a significant burden is placed upon the inmate to produce direct evidence of motivation or to allege a chronology of events from which retaliation may be plausibly inferred. Id. (citation and internal quotation omitted); cf. Hart v. Hairston, 343 F.3d 762 (5th Cir. 2003) (where an inmate established a "chronology of events" by alleging facts that directly tied the inmate's exercise of his First Amendment rights to the filing of charges.) Plaintiff has not met this burden because he has stated nothing more than conclusory allegations.
Plaintiff also claims that the charges filed against him violated his due process rights. More particularly, he claims his right to exhaust administrative remedies was wrongfully foreclosed. Plaintiff claims he filed a Step One Grievance in which he appealed the findings from the hearing, and that the grievance was supported by a statement given by another inmate. According to Plaintiff, the other inmate decided to withdraw his statement, which forced Plaintiff to retract his grievance. He claims that because his Step One Grievance was not returned until nearly three months later, he was prevented from filing his Step Two Grievance in a timely manner, which foreclosed the possibility of exhausting his administrative remedies. Thus, Plaintiff does not allege inadequacies in the hearing in which he was found guilty of the charge brought by Defendant Garcia; rather, he claims that he was deprived of the right to appeal the guilty charge through the grievance system. Plaintiff's claim is frivolous. First, the authenticated records show that Plaintiff retracted his Step One Grievance on his own accord. Second, Plaintiff has not alleged facts showing that Officer Garcia or any other TDCJ official prevented him from filing a new grievance when he decided to withdraw his Step One Grievance.
3. Plaintiff's claims regarding his classification
Plaintiff claims that he was falsely and wrongly classified as a high-risk escapee and alleges that Defendants Cheatham, Cockrell, and the TDCJ-ID Classification Committee are liable for the false designation. He contends that the designation of high-risk escapee constitutes cruel and unusual punishment and violates his equal protection rights. Plaintiff's claims are frivolous because prisoners do not have a protected liberty interest in their classification. Wilkerson v. Stadler, 329 F.3d 431, 436 (5th Cir. 2003) (citations omitted), cert. denied, 124 S.Ct. 432 (2003). Further, Plaintiff has not pled facts that demonstrate that his classification as a high-risk escapee deprived him of the minimal civilized measure of life's necessities. See Wilson, 501 U.S. at 298 (citation omitted).
Plaintiff also alleges that his life is in danger and that because he renounced his membership in a gang, he is subject to threats and rumors and that there is a "contract out on his life." He complains that he should, therefore, be placed in protective custody but that TDCJ-ID and Smith Unit officials refuse to do so. As an initial point, the court has carefully reviewed the authenticated records along with Plaintiff's allegations and concludes that Plaintiff's claims regarding danger to his life are delusional, irrational, and wholly incredible. See Denton, 504 U.S. at 32-33. Further, as noted above, Plaintiff does not have a constitutionally protected right to demand a certain classification. See Wilkerson, 329 F.3d at 436. Finally, the court will not order the TDCJ-ID to place Plaintiff under protective custody because such a classification is in the province of the TDCJ-ID. The Supreme Court has held that courts are generally ill-equipped to resolve problems unique to prisons and, when state institutions are involved, federal courts have reason to accord due deference to prison authorities. Procunier, 416 U.S. at 405.
Because Plaintiff's claims regarding his classification lack an arguable basis in law and fact, they are dismissed as frivolous under 28 U.S.C. § 1915(e)(2)(B). See Talib, 138 F.3d at 213; see also Denton, 504 U.S. at 32-33.
E. Eighth Amendment Claims for Use of Excessive Force
Plaintiff alleges that he was subjected to excessive force on two occasions. First, Plaintiff claims that he was assaulted by a number of TDCJ-ID employees in 1995. Plaintiff's first claim is governed by the Texas two-year statute of limitations for personal injury. TEX.CIV.PRAC REM. CODE § 16.003(a); Gonzales, 157 F.3d at 1019-20. Thus, he filed his claim beyond the applicable statute of limitations. Id. Although Plaintiff states that he recently discovered that the acts in 1995 violated his Constitutional rights, he cannot prevail under a "discovery rule" theory. For a § 1983 claim, the statute of limitations commences the moment the plaintiff is aware that he has suffered an injury or has sufficient information to know that he has been injured. Piotrowski, 237 F.3d at 576 (citations omitted). Thus, the statute of limitations commences not when a plaintiff understands he has a legal cause of action, but when he knows the facts that would ultimately support such a claim. Id. (citing Harrison v. United States, 708 F.2d 1023, 1027 (5th Cir. 1983)). In this case, at the time of the alleged events in 1995, Plaintiff knew of any injury he may now allege. Therefore, Plaintiff's claims regarding the events that occurred in 1995 are barred by limitations.
Plaintiff's second excessive force claim stems from events that occurred on July 7, 2002. On that date, Defendant Garrision and other TDCJ-ID employees were called to Plaintiff's cell at 3:45 p.m. because he was attempting to hang himself with a sheet. Defendant Garrision grabbed the sheet through the cell door and pulled it away from Plaintiff who then submitted to handcuffs and was escorted to the infirmary for medical evaluation. Plaintiff claims that when he arrived at the infirmary there was no psychiatrist waiting to speak with him. Instead, Defendants Garrison, Ortiz, and another lieutenant were waiting for him. Plaintiff told Defendant Garrison that he was tired of TDCJ-ID isolation and threats and complained about Defendant Doe's actions and about TDCJ-ID "paying inmates off." According to Plaintiff, Defendant Ortiz ordered Plaintiff to remove his footwear and Plaintiff removed his slip-on shoes but refused to remove his socks. Plaintiff claims Defendant Ortiz then ordered Defendant Lueva "to get [him]," and Lueva picked up Plaintiff by the throat and choked him while holding him in the air. Plaintiff claims he became unconscious and when he regained consciousness, Defendants Gonzalez and Lueva were beating him in the face. He claims that he was dragged on the floor out of the infirmary and, as he was being dragged, Defendant Gonzalez slammed a steel door against his head which caused his head to bleed onto the floor. According to Plaintiff, Defendant Garrison ordered other officers to put Plaintiff in a legal cage, and Defendant Horton ordered prison workers to clean up the blood in the hall.
Authenticated records provided by TDCJ-ID indicate that upon leaving the infirmary, Plaintiff hit the right side of his head on a door, which resulted in injuries to the right side of his head above his ear. When he was taken to a holding cell, Plaintiff pulled one hand free of his cuffs and smeared blood on his face and continued to state that cybernetics was the cause of all of his problems. One hour later another entry indicates that a wound on Plaintiff's head was cleaned and that Plaintiff refused further medical treatment. This report indicates that Plaintiff had a small cut approximately three centimeters in size and a minor contusion and small laceration, which were self-inflicted. The next entry on July 9, 2002, indicates that Plaintiff complained of pain in his head and neck from the injury. On the following day an entry indicates that Plaintiff again complained of pain and that medical personnel examined a contusion on Plaintiff's scalp and noted an absence of blood and swelling. On July 11, 2002, the medical records indicate that Plaintiff cut his left inner thigh because "he was tired." The records following this date concern the cut on Plaintiff's leg and do not address the injury to his head again.
Plaintiff claims he suffered a cut and lump on his head, which prevented him from sleeping on the right side of his head for approximately two weeks. He also claims the incident caused weight loss, fear, anger, humiliation, turmoil, depression, emotional and mental distress, and claims that as a result of his emotional distress he purposefully cut his left leg.
In order to state a claim for excessive use of force, the plaintiff must show "(1) an injury (2) which resulted directly and only from the use of force that was clearly excessive to the need and (3) the force used was objectively unreasonable." Goodson v. City of Corpus Christi, 202 F.3d 730, 740 (5th Cir. 2000) (quoting Williams v. Bramer, 180 F.3d 699, 703 (5th Cir. 1999)). Under Fifth Circuit law, "to support an Eighth Amendment excessive force claim a prisoner must have suffered more than de minimis physical injury." Gomez v. Chandler, 163 F.3d 921, 923(5th Cir. 1999). Under this standard, an inmate's injuries "must be more than de minimis but need not be significant." Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). In light of the fact that Plaintiff refused medical treatment for his injuries, his injuries were de minimis. Thus, Plaintiff has not alleged facts that would support a claim for excessive force; therefore, his excessive force claim must be dismissed as frivolous.
The courts have not developed a bright line test for which to determine what constitutes a de minimis physical injury. However, this court held in Luong v. Hatt, 979 F.Supp 481, 486 (N.D. Tex. 1997), that "[a] physical injury is . . . [a] condition requiring treatment by a medical care professional." The court explained that individuals do not seek medical care for the injuries they receive unless it appears to be of a serious nature. Id.
It is, therefore,
ORDERED that this civil rights complaint be dismissed with prejudice as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b)(1) and 42 U.S.C. § 1997e(c)(1)-(2). See Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999).
Any pending motions are denied as moot.
This is a consent case assigned to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c) with authority to enter judgment. Any appeal shall be to the Court of Appeals for the Fifth Circuit in accordance with 28 U.S.C. § 636(c)(3). This dismissal shall count as a qualifying dismissal under 28 U.S.C. § 1915(g) and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996). Dismissal of this action does not release Plaintiff or the institution where he is incarcerated from the obligation to pay any filing fee previously imposed. See Williams v. Roberts, 116 F.3d 1126, 1128 (5th Cir. 1997).
A copy of this order shall be sent to any party appearing pro se, to any attorney of record, to the Office of General Counsel, TDCJ-ID, Litigation Support, P.O. Box 13084, Austin, Texas 78711, and to TDCJ Local Funds Division, P.O. Box 629, Huntsville, Texas 77372-0629.
Judgment shall be entered accordingly.