Opinion
2:02-CV-0280
September 26, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff WILLIE PALDO, acting pro se and while incarcerated in the Texas Department of Criminal Justice, Institutional Division, filed suit pursuant to Title 42, United States Code, section 1983 complaining against the above-named defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that, on April 25, 2002, while he was assigned to administrative segregation in the Clements High Security Unit, he was subjected to the use of chemical force "for the very purpose of causing [him] pain and harm, by wanton infliction by the defendants." Plaintiff says he suffered "burning eyes, short of wind, chest pain, pain's [sic] shooting through the neck straining to breath."
See plaintiff's hand-printed attachment to his original complaint at page 3.
Id.
By his December 26, 2002, response to question nos. 1 and 2 of the Court's Questionnaire, plaintiff informs the Court that some inmates on the pod failed to comply with an order, plaintiff does not specify what the order was, and that defendant WESTON then ordered the entire pod sprayed with a pepper spray fogger. Plaintiff also states that thirty-two inmates received a disciplinary case as a result. Further, plaintiff's step 1 grievance, attached to his original complaint, reveals he suffered a confiscation of his property at that time. Plaintiff claims officials knew he wasn't one of the non-complying inmates and contends, therefore, that officials included him to punish him and others who were not involved.
Plaintiff's December 26, 2002, response to question no. 5 of the Court's Questionnaire.
Plaintiff requests an award of monetary damages and a transfer.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(1). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff both in his original complaint and his December 25, 2002, response to the Court's Questionnaire to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
LAW AND ANALYSIS
Initially, the Court notes that plaintiff has since been transferred to the Eastham Unit, rendering his requested injunctive relief moot. Beck v. Lynaugh, 842 F.2d 759, 762 (5th Cir. 1988).Plaintiff alleges that he was housed in High Security when what appears to be at least thirty-two inmates refused to comply with a command and WESTON ordered the entire pod be sprayed. Plaintiff argues he was not one of the disruptive inmates and contends the defendants knew this because they passed his cell and saw him sitting on his bunk. Plaintiff's complaint against the remaining defendants is that passed on the order or implemented it.
The malicious and sadistic use of force to cause harm violates contemporary standards of decency; however, not every malevolent touch, push, or shove by a prison guard gives rise to a federal cause of action. Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). A use of force which is not "repugnant to the conscience of mankind," Whitley v. Albers, 475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), is excluded from the Eighth Amendment's prohibition of cruel and unusual punishment and is considered to be de minimis.
The instant case is similar to the claims asserted in Baldwin v. Stalder, 137 F.3d 836 (5th Cir. 1998), in which the Fifth Circuit found no violation of the Eighth Amendment when chemical force was used on a bus loaded with inmates, even though only one or two of the inmates was being disruptive and even though the inmates were then denied the ability to wash off the pepper spray. Plaintiff has alleged an order was issued which a large number of inmates refused to obey. Only then did defendant WESTON order the use of chemical force. Consequently, it is clear that force was not utilized for the very purpose of causing plaintiff harm, but to restore order and discipline. Further, the only injury plaintiff suffered was de minimis. Compare, Olson v. Coleman, 804 F. Supp. 148, 150 (D.Kan. 1992) (finding a single blow to the head causing a contusion to be de minimis and not repugnant) and Candelaria v. Coughlin, 787 F. Supp. 368, 374 (S.D.N.Y. 1992) (allegation of single incident of guard using force to choke inmate distinguished from injuries alleged in Hudson), both cited with approval in Jackson v. Culbertson, 984 F.2d 699, 670 (5th Cir. 1993) (spraying inmate with fire extinguisher found to be de minimis and not repugnant to conscience of mankind); see, also, Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (interrogatory in civil rights suit requiring jury to determine whether arrestee suffered "injury" as result of alleged use of excessive force before considering issue of damages found reasonable and not plain error). The force of which plaintiff complains is clearly de minimis and outside the scope of the Eighth Amendment.
Further, the sole remaining relief requested by plaintiff is monetary relief. The Prison Litigation Reform Act of 1995 (PLRA) requires a showing of injury which, while it need not be significant, must be more than merely de minimis. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). The injury plaintiff has alleged is clearly de minimis and will not support a valid Eighth Amendment claim nor does it fulfill the "physical injury" requirement of the Prison Litigation Reform Act (PLRA) to support a claim for emotional or mental suffering. Id. Consequently, plaintiff's claims lack an arguable basis in law and are frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
Pursuant to Title 28, United States Code, sections 1915A and 1915((e)(2), as well as Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED:
The referral of the instant cause to the United States Magistrate Judge is hereby withdrawn.
This Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS. The Court declines to exercise pendant jurisdiction of any state law claims asserted; and they are, therefore, DISMISSED WITHOUT PREJUDICE. United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Corwin v. Mamey, Orton Investments, 843 F.2d 194, 200 (5th Cir. 1988).
LET JUDGMENT BE ENTERED ACCORDINGLY.
All pending motions are DENIED.
The Clerk will mail a copy of this Order to the plaintiff, and to any attorney of record by first class mail. The Clerk will also mail a copy to TDCJ-Office of the General Counsel, P.O. Box 13084, Capitol Station, Austin, TX 78711 and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.