Opinion
3:23-CV-0091-DCG-LS
03-06-2023
NOEL GARCIA, No. 12223-509, Plaintiff, v. OFFICER FIERROS, Defendant.
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
LEON SCHYDLOWER, UNITED STATES MAGISTRATE JUDGE
Federal inmate Noel Garcia sues Officer Fierros for applying handcuffs too tightly. I recommend that his complaint be dismissed.
1. Proceeding In Forma Pauperis.
Garcia's current prison account balance is $39.98,so I recommend that he be allowed to proceed in forma pauperis.
ECF No. 1, at 2.
2. Legal Standards.
Assuming Garcia is permitted to proceed in forma pauperis, his complaint is subject to screening under 28 U.S.C. § 1915(e)(2)(B).The statute provides, in pertinent part:
Screening is also mandatory, using the same factors, because Garcia is a prisoner. 28 U.S.C. § 1915A.
Notwithstanding 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 action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.
A complaint is frivolous if it lacks an arguable basis in law or fact.The dismissal standards for failure to state a claim are the same under § 1915(e)(2)(B)(ii) and Federal Rule of Civil Procedure 12(b)(6). To survive a dismissal motion a complaint must contain sufficient facts, accepted as true, that support a facially plausible claim for relief.The complaint need not contain “detailed factual allegations” but must state “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”
Talib v. Gilley, 138 F.3d 211, 213 (5thCir. 1998).
Newsome v. E.E.O.C., 301 F.3d 227, 231 (5th Cir. 2002).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).
A court must consider the allegations in a pro se plaintiff's complaint liberally. Pro se status does not, however, afford a plaintiff an “impenetrable shield, for one acting pro se has no license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.”
Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007).
Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir. 1986).
3. Garcia's Complaint is Frivolous.
Garcia alleges that on November 1, 2021, West Texas Detention Facility Officer Fierros, “acting within the scope of Federal Bureau of Prisons employment.....deliberately applied handcuffs and leg shackle[s] to[o] tightly.”Garcia alleges “excruciating pain,” but no injury. He asserts an excessive force claim in violation of the Eighth Amendment's prohibition against cruel and unusual punishment and a “deprivation of medical care and treatment” claim.I construe these as Bivens claims because Garcia alleges a federal actor violated his constitutional rights.
ECF No. 1-1, at 4.
Id.
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
A viable excessive force claim requires a plaintiff to show: (1) an injury, (2) which resulted directly and only from a use of force that was clearly excessive, and (3) the excessiveness of which was clearly unreasonable.Garcia's excessive force claim fails because “handcuffing too tightly, without more, does not amount to excessive force.”Moreover, a plaintiff must allege the handcuffing caused a greater than de minimis degree of physical harm,but Garcia alleges no physical harm whatsoever.
Freeman v. Gore, 483 F.3d 404, 416 (5th Cir. 2007).
Glenn v. City of Tyler, 242 F.3d 307, 314 (5th Cir. 2001).
See Montes v. Ransom, 219 Fed.Appx. 378, 380 (5th Cir. 2007) (red marks and swelling from tight handcuffs were “minor injuries [which] are inherently transient, are only de minimis, and are not actionable.”
With respect to his medical claim, Garcia needed to allege that Fierros acted with “deliberate indifference” to a “serious medical need” in a manner that “constitutes the unnecessary and wanton infliction of pain[.]”To establish deliberate indifference, Garcia must show that Fierros both “kn[ew] that [Garcia] face[d] a substantial risk of serious bodily harm and disregard[ed] that risk by failing to take reasonable measures to abate it.”Garcia alleges no facts whatsoever to support his medical claim. Indeed, he alleges no injury, much less a description about any substantial risk of serious bodily harm.
Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976).
Farmer v. Brennan, 511 U.S. 825, 847, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994)
4. Leave to amend
Ordinarily, a pro se plaintiff should be granted leave to amend his complaint, but not when he has already pled his “best case.”Given the scant nature of his pleading, I cannot say that Garcia has pled his base case. Accordingly, I recommend he be granted leave to file an amended complaint.
See Brewster v. Dretke, 587 F.3d 764, 767-768 (5th Cir. 2009).
5. Conclusion
I recommend that Garcia's motion to proceed in forma pauperis be Granted, and that his complaint be filed and Dismissed pursuant to 28 U.S.C. § 1915 With leave to amend.
NOTICE
THE PARTIES HAVE FOURTEEN DAYS FROM SERVICE OF THIS REPORT AND RECOMMENDATION TO FILE WRITTEN OBJECTIONS. 28 U.S.C. § 636(b)(1)(C); FED. R. CIV. P. 72(b). FAILURE TO FILE TIMELY OBJECTIONS MAY PRECLUDE APPELLATE REVIEW OF FACTUAL FINDINGS OR LEGAL CONCLUSIONS, EXCEPT FOR PLAIN ERROR. ORTIZ V. CITY OF SAN ANTONIO FIRE DEP'T, 806 F.3D 822, 825 (5TH CIR. 2015).