Opinion
CIVIL ACTION NO. 1:03-CV-046-C
March 31, 2004
ORDER
On March 11, 2003, Plaintiff Juan Serrano, acting pro se, filed a civil rights and Federal Torts Claim Act complaint and was granted permission to proceed in forma pauperis, Serrano complains that Correctional Officers Addy and Payte intentionally tightened his handcuffs too tight when he was confined in The Special Housing Unit at the Federal Correctional Institution ("FCI") in Big Spring, Texas. He states that he is suing the defendants in both their individual and official capacities and he seeks compensatory and punitive damages.
The defendants named in Serrano's complaint are federal officials; therefore, the complaint is more properly characterized as a Bivens claim under the aegis of Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. 403 U.S. 388 (1971). See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials.").
On April 2, 2003, Serrano filed his answers to the court's questionnaire regarding the exhaustion of his Bureau of Prisons administrative remedies and attached copies of his prison records. The complaint was subsequently transferred to the United States Magistrate Judge for screening pursuant to 28 U.S.C. § 1915 and 1915A. The Magistrate Judge conducted a Spears evidentiary hearing on June 17, 2003, and Serrano appeared in person and testified under oath. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985) (holding that an evidentiary hearing may be used to develop the factual basis of a prisoner complaint). Serrano declined to consent to proceed before the Magistrate Judge and the complaint was transferred back to the docket of this Court by Order dated June 25, 2003. Although the Defendants have not filed an answer, the Court has considered Serrano's pleadings, his answers to the questionnaire, and his testimony from the Spears hearing and finds that Serrano's complaint is subject to dismissal under 28 U.S.C. § 1915 and 1915A.
STANDARD OF REVIEW
When a prisoner seeks to proceed in forma pauperis, "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines" that the complaint is frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C.A. § 1915(e)(2)(B) (West 1994 and Supp. 2000). See 28 U.S.C.A. § 1915A (West 1994 and Supp. 2000) (stating that when a prisoner seeks redress from a governmental entity or one of its employees, the court shall review the complaint as soon as practicable and dismiss it if the court finds the complaint frivolous, malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief); 42 U.S.C.A. § 1997e(c) (West 1994 and Supp. 2000) (providing that a district court shall on its own motion or the motion of any party dismiss a complaint by a prisoner regarding prison conditions if the court is satisfied the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from an immune defendant). See also Grayson v. Mayview State Hospital, 293 F.3d 103, 109-10 n. 11 (3rd Cir. 2002) (noting that § 1915A allows for dismissal at the initial filing stage if the complaint is facially inadequate, while § 1915(e)(2) and § 1997e allow for dismissal at any time during the proceedings if it becomes apparent that the case satisfies either section).
A claim is frivolous if it has no arguable basis in law or fact. Nietzke v. Williams, 490 U.S. 319 (1989). A claim has no arguable basis in law if it is based on an indisputably meritless legal theory, "such as if the complaint alleges the violation of a legal interest which clearly does not exist." Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quotation omitted). A claim has no arguable basis in fact if "after providing the plaintiff the opportunity to present additional facts when necessary, the facts alleged are clearly baseless." Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998).
District courts must construe in forma pauperis complaints liberally, particularly in the context of dismissals under § 1915(e)(2)(B), but are given broad discretion in determining when such complaints are frivolous. Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994). A complaint may not be dismissed under § 1915(d)(2)(B) "simply because the court finds the plaintiff's allegations unlikely." Jolly v. Klein, 923 F. Supp. 931, 942-43 (S.D. Tex. 1996). A civil rights plaintiff must support his claim(s) with specific facts demonstrating a constitutional deprivation and may not simply rely on conclusory allegations. Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995). See Wesson v. Ogleby, 910 F.2d 278, 281 (5th Cir. 1990) ("An IFP complaint that recites bare legal conclusions, with no suggestion of supporting facts, or that postulates facts of an entirely fanciful nature, is a prime candidate for dismissal under [§ 1915(d)(2)(B)]."). Nevertheless, a district court is bound by the allegations in a plaintiff's complaint and is "not free to speculate that the plaintiff `might' be able to state a claim if given yet another opportunity to add more facts to the complaint." Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d at 97."
DISCUSSION
Serrano raises the following complaints:(1) When Serrano was incarcerated in the Special Housing Unit of the PCI Big Spring on February 28, 2002, Defendant Payte placed him in handcuffs to transport him to the showers. Although Serrano complained that the cuff on his right hand was too tight and Defendant Payte acknowledged that the cuff appeared to be too tight, Defendant Payte refused to loosen the cuff and tightened it even more after Serrano began to scream for help. Serrano suffered a swollen hand and wrist, "significant" pain, and bruising of his finger and thumb as a result of Defendant Payte's action. Later that same day, Serrano was examined by medical personnel who noted that he had redness, swelling, and a small contusion on his right hand, He was given pain medication and ordered to place an ice pack on his hand but the ice was never provided. Serrano concedes that his hand was x-rayed about a week later but he was never given the results of the x-ray.
(2) Defendant Addy placed him in handcuffs on March 20, 2002, to transport him from recreation to his cell on the Special Housing Unit. When Serrano advised Defendant Addy that the left handcuff was too tight, Defendant Addy apologized for making the cuff too tight but tightened the left handcuff even more. Serrano was examined by medical personnel later that same day and the medical records indicate that they observed small red marks on his left wrist. Serrano contends that he suffered a small scratch or contusion which bled for a few minutes but stopped bleeding when he washed it off. He states that medical did not put a band-aid or any kind of bandage on the scratch because the scratch was no longer bleeding by the time he was examined.
In his original complaint, Serrano contends that Defendant Addy tightened the cuffs on March 30, 2002, but at the Spears evidentiary hearing on June 17, 2003, he agreed with the medical records which indicated that his left wrist was examined following his complaint about Defendant Addy on March 20, 2002.
Serrano requests that criminal charges be filed against the Defendants for their "criminal acts;" he requests that his hand be examined and x-rayed because it still hurts; he requests that the Defendants be ordered to stop over-tightening the handcuffs; he requests compensatory and punitive damages; and he requests that he be immediately released from incarceration. The Court has construed Serrano's pro se pleadings liberally.
1. Early Release
To the extent that Serrano advised the Magistrate Judge at the Spears evidentiary hearing that he wants an early release from prison as part of his relief, he has requested relief which is not available under Bivens or the Federal Tort Claims Act. See Carson v. Johnson, 1 12 F.3d 818, 820 (5th Cir. 1997) (holding that while § 1983 is the proper vehicle for attacking unconstitutional prison conditions or procedures, a petition for writ of habeas corpus is the proper vehicle for seeking release from custody).
2. Criminal Charges
To the extent that Serrano has requested that criminal charges be filed against Defendants Addy and Payte, an inmate has no constitutional right to have someone criminally prosecuted. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990). Thus, he has requested relief which is not available under Bivens. See Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990) ("The decision to file or not file criminal charges falls within [the] category of acts that will not give rise to section 1983 liability.").
3. Injunctive Relief
To the extent that Serrano has requested that said Defendants be ordered to refrain from using excessive force when placing handcuffs on him, he has requested prospective injunctive relief. See Castillo v. Cameron County, Tex., 238 F.3d 339, 351 n. 19 (5th Cir. 2001) (quoting 18 U.S.C. § 3626(g)(7)) ("The PLRA defines `prospective relief as `all relief other than compensatory monetary damages.'").
"The transfer of a prisoner out of an institution often will render his claims for injunctive relief moot" unless he "can show either a `demonstrated probability' or a `reasonable expectation' that he will be transferred back to the facility." Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002) (quoting Murphy v. Hunt, 455 U.S. 478, 482 (1982)). See Wallace v. Texas Tech University, 80 F.3d 1042, 1047 n. 3 (5th Cir. 1996) ("Jurisdiction over a plaintiff's claims for future relief is appropriate only if a reasonable likelihood exists that the plaintiff will again be subjected to the allegedly unconstitutional actions."). See also Herman v. Holiday, 238 F.3d 660, 665 (5th Cir. 2001) (finding that an inmate's transfer from a detention center 10 a state correctional institution mooted his Eighth Amendment claims for declaratory and injunctive relief because any suggestion of a transfer back to the detention center was too speculative to warrant relief); Cooper v. Sheriff, Lubbock County, Tex., 929 F.2d 1078, 1084 (5th Cir. 1991) (finding complaint about jail conditions which requested equitable relief was moot where the inmate had been transferred to state prison).
Serrano has neither alleged nor demonstrated that there is a reasonable likelihood that he will be transferred back to the Special Housing Unit at FCI Big Spring. Hence, his request for prospective injunctive relief should be dismissed as moot Bilarski v. Harborth, 55 F.3d 160, 162 (5th Cir. 1995).
4. Monetary Damages
(a) Bivens Complaint
Although 42 U.S.C. § 1983 does not provide a remedy for constitutional deprivations committed by an individual acting under color of federal law, the Supreme Court established in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 398 (1971), that "the victims of a constitutional violation by a federal agent have a right to recover damages against the official in federal court despite the absence of any statute conferring such a right." Carlson v. Green, 446 U.S. at 18. See Evans v. Ball, 168 F.3d 856, 863 n. 10 (5th Cir. 1999) ("A Bivens action is analogous to an action under § 1983 — the only difference being that § 1983 applies to constitutional violations by state, rather than federal, officials."). A federal prisoner may bring a Bivens claim only against a Bureau of Prisons officer in his individual capacity, but in the absence of a waiver, the doctrine of sovereign immunity prevents the prisoner from bringing a Bivens claim against the officer in his official capacity as an employee of the United States or against the Bureau of Prisons. Correctional Services Corporation v. Malesko, 534 U.S. 61, 71-72 (2001). See FDIC v. Meyer, 510 U.S. 471, 486 (1994) (finding that there is no direct cause of action for damages against a federal agency because of sovereign immunity). To the extent, therefore, that Serrano is suing Defendants Addy and Payte for monetary damages in their official capacities as employees or agents of the Bureau of Prisons, his Bivens action must be dismissed for want of jurisdiction. See Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002) (noting that a Bivens action against federal agents acting in their official capacities is properly dismissed). See also FDIC v. Meyer, 510 U.S. at 475 (holding that "[s]overeign immunity is jurisdictional in nature").
To pursue his claims against Defendants Addy and Payte in their individual capacities, Serrano "must first demonstrate that his constitutional rights have been violated." Davis v. Passman, 442 U.S. 228, 248 (1979). "The Constitution does not mandate comfortable prisons . . . but neither does it permit inhumane ones, and it is now settled that the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Harper v. Showers, 1 74 F.3d 716, 719 (5th Cir. 1999) (quoting Woods v. Edwards, 51 F.3d 577, 581 (5th Cir. 1995) (internal quotations omitted). To establish a violation of the Eighth Amendment, Serrano must demonstrate (1) "the objective component of conditions `so serious as to deprive [him] of the minimal measure of life's necessities as when it denies the prisoner some basic human need[,]'". . . and (2) the subjective component, i.e., "the prisoner must establish that the responsible prison officials acted with deliberate indifference to his [health or safety]." Harper v. Showers, 174 F.3d at 720 (quoting Woods v. Edwards, 51 F.3d at 581 (internal quotation omitted)) (footnotes omitted). In addition, "[u]nder [42 U.S.C.] § 1997e(e), `[n]o Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury,'" Alexander v. Tippah County, Miss., 351 F.3d 626, 631 (5th Cir. 2003). "The `"physical injury' required by § 1997e(e) `must be more than de minimus [sic], but need not be significant.'" Id. (quoting Harper v. Showers, 174 F.3d at 719 (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997))) (alteration in the original). "[W]ithout this de minimis threshold, every `least touching' of a [prisoner] would give rise to section 1983 liability. . . . Not only would such a rule swamp the federal courts with questionable excessive force claims, it would also constitute an unwarranted assumption of federal judicial authority to scrutinize the minutiae of state detention activities." Riley v. Dorton, 115 F.3d 1159, 1167 (5th Cir. 1997).
"The use of . . . handcuffs [is a] restraint commonly used on inmates, even those of a preferred status." Jackson v. Cain, 864 F.2d 1235, 1243 (5th Cir. 1989). In Glenn v. City of Tyler, 242 F.3d 307, 311 (5th Cir. 2001), the Fifth Circuit addressed a plaintiff's claim that a police officer tightened her handcuffs so tightly that her right hand became swollen. Finding that the plaintiff failed to allege that the officer acted with malice, the Fifth Circuit held that "handcuffing too tightly, without more, does not amount to excessive force," Id. at 314. Serrano alleged that both Defendants deliberately ignored his complaints about the handcuffs and intentionally tightened the cuffs even more when he complained. Assuming that Serrano's allegations are correct and Defendants Addy and Payte did excessively tighten the handcuffs, this Court does not condone such behavior but "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights." Hudson v. McMillian, 503 U.S. 1, 9 (1992) (quoting Johnson v. Click, 481 F.2d 1028, 1033 (2d Cir. 1973)). Serrano has failed to satisfy the requirement of § 1997e(e) and demonstrate that he suffered more than a de ninimis injury when Defendants Addy and Payte tightened his handcuffs. See Siglar v. Hightower, 112 F.3d at 193 (holding that an ear that was sore and bruised for three days was a de minimis injury); Pfannstiel v. City of Marion, 918 F.2d 1178, 1186 (5th Cir. 1990) (holding that claims of neck strain from a chokehold, scratches, "marks" left on wrists by handcuffs, and rough treatment causing elevated blood pressure did not amount to injuries sufficient to support claims of constitutional excessive use of force); Wesson v. Oglesby, 910 F.2d at 283 (finding that the allegation of an officer placing petitioner in a chokehold until he lost consciousness was insufficient to support a claim for excessive force because the injury was de minimis); and Raley v. Fraser, 747 F.2d 287, 289 (5th Cir. 1984) (holding that use of force which resulted in sore throat and hoarseness for two weeks and raised welts from tightened handcuffs did not amount to abuse of power that shocked the conscience).
Accordingly, the Court finds that Serrano's Bivens claim against Defendants Addy and Payte in their individual capacities should be dismissed with prejudice for failure to state a claim.
(b) Federal Tort Claims
To the extent that Serrano sued Defendants Payte and Addy in their official capacities as employees of the United States Bureau of Prisons, he has attempted to state a claim against the United States under the Federal Ton Claims Act.
"Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit." FDIC v. Meyer, 510 U.S. 471, 475 (1994). "A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text . . . and will not be implied. . . ." Lane v. Pena, 518 U.S. 187, 192 (1996). Thus, "[t]o sustain a claim that the Government is liable for awards of monetary damages, the waiver of sovereign immunity must extend unambiguously to such monetary claims." Id.
`The [Federal Tort Claims Act] ("FTCA") is a waiver of sovereign immunity, providing general authority for tort suits against the [Federal] [G]overnment. . . ." Halverson v. United States, 972 F.2d 654, 655 (5th Cir. 1992). "The FTCA gives federal district courts jurisdiction over claims against the United States for money damages `for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred'" Sheridan v. United States, 487 U.S. 392, 398 (1988) (quoting 28 U.S.C. § 1346(b)). "[T]he Act also provides[, however,] that this broad grant of jurisdiction `shall not apply to . . . [a]ny claim arising out of assault, battery' or other specified intentional torts." Id. (quoting 28 U.S.C. § 2680(h)). Thus, to the extent that Serrano's allegations can be construed to raise claims for the intentional tort of assault, this Court has no jurisdiction over his claims under the FTCA. See Mitchell v. Carbon, 896 F.2d 128, 134 (5th Cir. 1990) (holding that a district court must dismiss claims for the intentional torts of assault and battery because the court has no jurisdiction under the FTCA over such claims).
Furthermore, Serrano's request for punitive damages is not cognizable under me FTCA. Hessbrook v. Lemon, 777 F.2d 999, 1005 (5th Cir. 1985).
CONCLUSION
For the reasons set forth above, the Court finds that
1. Serrano's claims requesting early release are dismissed with prejudice for failure to state a claim on which relief may be granted under Bivens.
2. Serrano's complaint requesting that criminal charges be filed against the Defendants should be dismissed with prejudice as frivolous.
3. Serrano's Bivens complaint requesting prospective injunctive relief should be dismissed as moot.
4. Serrano's Bivens complaints requesting monetary damages against Defendants Addy and Payte in their official capacities should be dismissed with prejudice because Defendants Addy and Payte as employees of the BOP are immune from such relief.
5. Serrano's Bivens complaint against Defendants Addy and Payte in their individual capacities should be dismissed with prejudice for failure to state a claim on which relief can be granted.
6. Serrano's FTCA complaint against the United States of America should be dismissed with prejudice for want of jurisdiction.
7. This dismissal should count as a qualifying dismissal under 28 U.S.C. § 1915 and Adepegba v. Hammons, 103 F.3d 383 (5th Cir. 1996).
8. This Order of dismissal does not release Serrano or the institution where he is incarcerated from the filing fee obligations previously imposed
9. All pending motions are hereby denied.
SO ORDERED.
Judgment shall be entered accordingly.
Plaintiff is advised that if he appeals this Order, he will be required to pay the appeal fee of $255.00 pursuant to the PLRA, and he must submit an application to proceed in forma pauperis and a 6-month Certificate of Inmate Trust Account at the same time he files his notice of appeal.
A copy of this Order shall be mailed to the Warden of the Federal Correctional Institute, Big Spring, 1900 Simler Avenue, Big Spring, Texas 79720.