Opinion
2:04-CV-0026.
April 30, 2004
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JOAQUIN VILLARREAL CASTILLO, acting pro se and while a prisoner incarcerated in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
Plaintiff complains that, on September 9, 2003, he agreed to go shower. While being escorted to the shower, plaintiff demanded a towel, but was denied by defendant JASPER who reminded plaintiff that he was on strip cell restriction. JASPER also refused plaintiff's request that he get a ranking supervisor for plaintiff. Defendant MARTINEZ was also escorting plaintiff to the shower at the time and was on plaintiff's other side. Plaintiff says that he then bent his knees, forcing the two officers to bear his weight and refusing to stand or walk further, despite JASPER's order that he get up and go to the shower or back to his cell. Plaintiff says defendant JASPER threatened to run his head in the concrete and, after the failure of his attempts to force plaintiff to get up, he lifted him as much as he could and then "slammed" plaintiff to the ground head first. Plaintiff says this "bust[ed] [his] chin on the right side" and that, after the use of force team assembled, he was returned to his cell where a nurse cleaned the cut on his chin.
Plaintiff sues the defendants claiming a use of excessive force and requests an award of $10,000.00, as well as punitive damages. Plaintiff also asks that the disciplinary case which resulted from the incident be expunged from his record and that he be given at least a line one classification and 365 days of good time, as well as immediate consideration for release from the Stepdown Program and placement in the P.A.M.I.O. program.
JUDICIAL REVIEW
When a prisoner confined in any jail, prison, or other correctional facility brings an action with respect to prison conditions under any federal law, the Court may 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 to determine if his claim presents grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
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.
In the instant case, accepting plaintiff's allegations as true, the only injury plaintiff has alleged is a cut on his chin which required no medical care beyond being cleaned. The injury plaintiff has plead is clearly de minimis. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (bruised ear lasting several days de minimis injury). 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). In light of the harm and the facts alleged, it appears the force of which plaintiff complains was de minimis; and plaintiff has failed to state a claim of violation of the Eighth Amendment prohibition against cruel and unusual punishment.
Consequently, plaintiff has failed to state a claim on which relief can be granted.
CONCLUSION
Pursuant to Title 28 U.S.C. § 1915A and 1915(e)(2), as well as Title 42, United States Code, section 1997e(c)(1),
IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff JOAQUIN VILLARREAL CASTILLO is DISMISSED FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, 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.