Opinion
7:02-CV-005-R
July 24, 2003
ORDER OF DISMISSAL
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the Allred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas. Defendants are guards at the Allred Unit Anderson claims that excessive force was used against him when Defendant Contreras punched him in the face and Defendant McNulty slammed him to the ground and restrained him in an aggressive manner by twisting his right arm behind his back Complaint ¶ V; Plaintiff's Answers to the Court's Questions No. 3, 5, 9 10. Plaintiff seeks monetary damages. Complaint at ¶ VI.
"To prevail on an eighth amendment excessive force claim, a plaintiff must establish that force was not * applied in a good-faith effort to maintain or restore discipline, [but] maliciously and sadistically to cause harm' and that he suffered an injury." Eason v. Holt, 73 F.3d 600, 601-02 (5th Cir 1996) (quoting Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999 (1992)).
Anderson was given the opportunity to expound on the factual allegations of his complaint by way of questionnaire. See Eason v. Thaler, 14 F.3d 8 (5th Cir. 1994) (requiring further development of insufficient factual allegations before dismissal as frivolous is proper); Watson v. Ault, 525 F.2d 886, 892-93 (5th Cir. 1976) (affirming use of questionnaire as useful and proper means for court to develop factual basis of prose plaintiff's complaint). However, he failed to allege any facts which, taken as true, would indicate that the force used by Defendants was applied maliciously and sadistically in an effort to cause harm. See Plaintiff's Answers to the Court's Questions No. 5, 9, 10 11 Plaintiff's allegations regarding deliberate indifference on the part of Defendants are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act. See Fernandez-Montes v. Allied Pilots Ass'n, 987 F.2d 278, 284 (5th Cir. 1993) (holding that "conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss"); Van Cleave v. United States, 854 F.2d 82, 84 (5th Cir. 1988) (requiring specific facts and noting that conclusory allegations are insufficient to maintain a: claim under § 1983).
The Court has the power to pierce the veil of a pro se plaintiff's allegations and dismiss those claims whose factual contentions are clearly baseless. Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir.). cert, denied, 513 US. 883, 115 S-Ct. 220 (1994). Although in forma pauperis complaints are to be construed liberally, the Court is bound by the allegations of the complaint and is not free to speculate that a plaintiff might be able to state a claim if given yet another opportunity to add more facts. Id.
Moreover, Plaintiff has failed to demonstrate that he suffered any physical injury as a result of the use of force.
42 U.S.C. § 1997e(e) provides that:
No 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.
Anderson was given the opportunity to describe his alleged injuries. See Court's Question: No. 7.
He complains of bruised ribs and cuts inside his mouth. Plaintiff's Answer to the Court's Question No. 7. Unfortunately, such de minimus injuries do not constitute "physical injury" within the meaning of 42 U.S.C. § 1997e(e). See Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir. 1997) (holding that a sore bruised ear lasting for three days did not constitute a physical injury as required to state a claim for excessive force); Luong v. Hatt, 979 F. Supp. 481, 486 (N.D. Tex 1997) (holding that sore muscles, scratches, abrasions and bruises do not constitute a "physical injury" within the meaning of § 1997e(e)).
A district court may dismiss a complaint filed by a prisoner proceeding in forma pauperis if it determines that the action is frivolous. 28 U.S.C. § 1915(e)(2)(B)(i), An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct 1827, 1831-32(1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 501 U.S. 1235, 111 S.Ct, 2863 (1991). A complaint is without an arguable basis in law if it is "based on an indisputably meritless legal theory," Neitzke, 490 U.S. at 327, 109 S.Ct. at 1833. The civil rights claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that the complaint is hereby dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) as frivolous.
The Clerk of Court shall transmit a true copy of this Order to Plaintiff.
SO ORDERED.