Opinion
Civil Action No. 1:01-CV-001-BG
February 11, 2002
ORDER DISMISSING CASE WITH PREJUDICE
Plaintiff, Leon Earl Hubbard, proceeding pro se and in forma pauperis, has filed a claim pursuant to 42 U.S.C. § 1983. Hubbard brings this suit against Officer Clint Duggan of the Middleton Unit of the Texas Department of Criminal Justice. Hubbard claims Defendant Duggan used excessive force on March 17, 2000.
Hubbard has consented to proceed before a Magistrate Judge pursuant to 28 U.S.C. § 636(c). An evidentiary hearing was held on March 8, 2001, via video teleconference pursuant to Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). After reviewing Hubbard's Complaint, the testimony given under oath, and the authenticated records provided, the court is of the opinion that the case should be DISMISSED with prejudice.
I. STATEMENT OF THE CASE
In his Complaint, Hubbard states that on March 17, 2000, while incarcerated at the Middleton Unit Transfer Facility, Officer Duggan used excessive force. Hubbard claims that Officer Duggan asked him his identification number and then asked him to repeat the number. Hubbard alleges that as he was repeating the number Officer Duggan punched him in the jaw and began punching Hubbard in the ribs when he fell on the floor. When other officers arrived on the scene, Officer Duggan grabbed Hubbard's legs and twisted them. Hubbard claims that he was charged with a disciplinary infraction for assault on an officer when, in fact, he was the victim.
In his testimony at the Spears hearing, Hubbard testified that Officer Duggan hit him in the stomach and after he fell to the floor Officer Duggan kicked him. Hubbard stated that the incident lasted approximately 15 seconds. When asked what injuries he sustained, Hubbard stated that he asked for Tylenol for the pain. When asked what he wanted the court to do for him in this case, Hubbard stated that he wanted the court to file criminal charges against Officer Duggan.
II. LEGAL STANDARD
Under 28 U.S.C. § 1915(e), the court is required to dismiss the complaint or any portion of the complaint if it is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. A claim may be dismissed as frivolous if the claim lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Talib v. Gilley, 138 F.3d 211, 213 (5th Cir. 1998). An evidentiary hearing may be used to assist the court in determining whether the case should be dismissed. Spears, 766 F.2d at 181-82. Dismissals can be based on authenticated prison records. Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995) (per curiam).
III. DISCUSSION
Whenever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is that set out in Whitley v. Albers, 475 U.S. 312 (1992): "whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992).
Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation, "or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur." Whitley, 475 U.S. at 321. "In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response." Hudson, 503 U.S. at 7 (citations omitted). The absence of serious injury is therefore relevant to the Eighth Amendment inquiry but, does not end it. Id.
The Fifth Circuit Court of Appeals has expressed the factors a court must look to in determining whether an Eighth Amendment excessive force claim has been made out including: (1) the extent of the injury suffered; (2) the need for application of force; (3) the relationship between the need and the amount of force used; (4) the threat reasonably perceived by the responsible officials; and (5) any efforts made to temper the severity of a forceful response. Hudson v. McMillian, 962 F.2d 522, 523 (5th Cir. 1992) (on remand).
In the wake of the Hudson decision, the Fifth Circuit Court of Appeals has held that some physical injury is an indispensable element of an Eighth Amendment excessive force claim. Knight v. Caldwell, 970 F.2d 1430, 1432-33 (5th Cir. 1992) (holding Hudson does not affect the rule that requires proof of injury, albeit significant or insignificant, `injury' properly defined as physical injury); Jackson v. Culbertson, 984 F.2d 699, 700 (5th Cir. 1993) ("Because he suffered no injury . . . [there] was a de minimis use of physical force . . . not repugnant to the conscience of mankind.").
In the case at hand, Hubbard has charged that Officer Duggan used excessive force on March 17, 2000. Medical records show that Hubbard was evaluated by medical staff pursuant to unit policy and no injuries were noted. Hubbard stated that the day after the incident his face was sore. Hubbard was never treated for cuts, scrapes, bruising, or any other injury. Furthermore, Hubbard fails to allege any further treatment necessary for his alleged pain, and the authenticated medical records verify that he never requested treatment in the days or weeks following the alleged incident. Additionally, Hubbard acknowledges that he was charged and found guilty of a disciplinary infraction for this incident. The complained-of use of force in this case is not of a sort "repugnant to the conscience of mankind." See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); cf. Gomez v. Chandler, 163 F.3d 921, 924 (5th Cir. 1999) (court found as a matter of law that Plaintiffs injuries, caused by being knocked down and repeatedly punched in the face and head by officers, were not de minimis). Hubbard has not raised a valid Eighth Amendment claim for excessive use of force nor does he have the requisite physical injury to support a claim for emotional or mental suffering.
Hubbard is not entitled to have damages awarded based on the loss of good time and line class when he has failed to exhaust his administrative remedies on this issue. Hubbard cannot collaterally attack his disciplinary case in a civil rights action filed pursuant to 42 U.S.C. § 1983 until he can demonstrate that the disciplinary case has been overturned, reversed, expunged, invalidated, or called into question by a state or federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 487 (1994); Edwards v. Balisok, 520 U.S. 641 (1997). Hubbard cannot circumvent these procedural requirements by alleging a conclusory excessive force claim.
Additionally, the only relief requested by Hubbard is the filing of criminal charges against Officer Duggan. As Hubbard was notified at the Spears hearing, this court does not have jurisdiction to bring criminal charges against Defendant Duggan.
IV. CONCLUSION
Based upon the foregoing reasoning, the court finds that Plaintiffs Complaint fails to state a claim upon which relief may be granted. 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)(i) and 1915A(b)(1). 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) ( citing In re Tyler, 110 F.3d 528, 529-30 (8th Cir. 1997)).
It is further
ORDERED that all pending motions not previously considered by the court 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).
A copy of this Order shall be mailed to all parties appearing pro se, to each 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 77342-0629 by first class mail.
Judgment shall be entered accordingly.
JUDGMENT
Of equal date herewith the court's Order Dismissing Plaintiff's Case With Prejudice having been entered, it is
ORDERED AND ADJUDGED that Plaintiffs Complaint and all claims alleged therein are DISMISSED with prejudice as frivolous.