Opinion
No. 2:04-CV-0150.
January 24, 2005
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff JUAN REYES, acting pro se and while incarcerated in the Texas Department of Criminal Justice, Correctional Institutions Division, filed this 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 claims that, on February 23, 2004, he suffered an excessive use of force by defendant NOVAK and HINKLE. Specifically, plaintiff alleges that, after a disciplinary hearing, defendant NOVAK told him to leave the office and then told him to "assume the position" against the wall. Plaintiff says he couldn't raise his right arm because of surgery "so [defendant] NOVAK kicked [plaintiff's] foot from under [plaintiff] making [plaintiff] collide with the wall." Plaintiff says defendant HINKLE then grabbed him by the neck and slammed him into the wall, scratching his neck. Plaintiff says that, while being escorted and in handcuffs, defendant HINKLE pinched his arm and stepped on his toes, trying to crush them. Plaintiff also claims defendants NOVAK and HINKLE refused him medical treatment until the next day.
Plaintiff requests "monetary relief/correct officers for treatment/no retaliation."
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).The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by plaintiff in his amended complaint to determine if his claim presents grounds for dismissal or should proceed to answer by defendant.
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.
By his October 21, 2004 Questionnaire response to question no. 2, plaintiff states the injuries diagnosed were bruises, scratches, bumps and general soreness for which he was prescribed a soak for swelling, pain medication, and a tetanus shot.
In the instant case, accepting plaintiff's allegations as true, plaintiff has alleged he was unable to properly assume the position against the wall and "so [defendant] NOVAK kicked [plaintiff's] foot" and made him collide with the wall. This is the only use of force alleged against defendant NOVAK and was clearly for purposes of restoring or maintaining security and, in any event, was de minimis. Defendant HINKLE is alleged to have then grabbed plaintiff's neck and "slammed [him] into the wall" scratching his neck. He then pinched plaintiff's arm and intentionally stepped on his toes while escorting him. Unprofessional as these acts described by plaintiff may have been, the Court finds no repugnant use of force is evident here. Compare, Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (sore, bruised ear lasting three days de minimis); 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. Plaintiff's claim lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
Plaintiff also claims defendants NOVAK and HINKLE denied him medical care until the next day. Because society does not expect that prisoners will have unqualified access to health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if those needs are "serious." Hudson v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156 (1992). A delay in medical care to a prisoner can constitute an Eighth Amendment violation only if there has been deliberate indifference, which results in substantial harm. Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). Plaintiff has alleged he sustained "bruises, scratches, bumps [and] general soreness," the treatment of which does not appear to have been a serious medical need. Further, plaintiff has not alleged the delay resulted in substantial harm nor does it appear possible that delay could have produced such harm. Concerning the alleged delay in medical care, plaintiff has failed to allege a claim on which relief can be granted.
In addition, plaintiff names DOUG DRETKE as a defendant but alleges no fact indication any personal involvement by DRETKE nor any facts indicating there is a causal connection between an official act or policy by DRETKE and the constitutional violation sought to be redressed. Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987); Douthit v. Jones, 641 F.2d 345, 346 (5th Cir. 1981) ( per curiam). The acts of subordinates trigger no individual section 1983 liability for supervisory officers. Champagne v. Jefferson Parish Sheriff's Office, 188 F.3d 312, 314 (5th Cir. 1999). Plaintiff's claim against defendant DRETKE clearly lacks an arguable basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
CONCLUSION
IT IS HEREBY ORDERED:
This Civil Rights Complaint is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
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.