Opinion
7:00-CV-128-R.
April 29, 2002
ORDER OF DISMISSAL
This is an action filed 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. Wright claims that he was subjected to the use of excessive force, that he was denied adequate medical care and that he was subjected to cruel and unusual punishment when he was left nude in his cell without a mattress, linen or other property for 72 hours. Complaint ¶ V. He seeks $50,000 in monetary damages.
"To prevail on an eight amendment excessive force claim, a plaintiff must establish that for 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)).
Plaintiff claims that a chemical agent was wrongfully sprayed on him by Defendants Webb and Ranjel. Complaint ¶ V; Plaintiff's Answer to the Court's Question No. 1. Unfortunately, he states no facts which would establish that the chemical agent was used by Defendants maliciously and sadistically in an effort to cause harm. See Plaintiff's Answers to the Court's Questions No. 3-4. Plaintiff concedes that the chemical agent was sprayed only after he refused to submit to a strip search, refused to exit his cell, refused to remove his hand from the food slot and refused to stop kicking his cell door. Plaintiff's Answers to the Court's Questions No. 1-2. Assuming the truth of Plaintiff's factual allegations, the use of force, applied only after Plaintiff's persistent disruptiveness and failure to follow orders, was justified. In situations such as this, "[prison officials] are entitled to wide-ranging deference." See Baldwin v. Stalder, 137 F.3d 836, 840 (5th Cir. 1998) (finding that the use of mace to quell a disturbance caused by inmates on a bus did not constitute excessive force). "The amount of force that is constitutionally permissible . . . must be judged by the context in which that force is deployed." Id. (quoting Ikerd v. Blair, 101 F.3d 430, 434 (5th Cir. 1996)). The use of mace or tear gas does not constitute cruel and unusual punishment when reasonably necessary to subdue a recalcitrant prisoner. Clemmons v. Greggs, 509 F.2d 1338, 1340 (5th Cir. cert. denied, 423 U.S. 946, 96 S.Ct. 360 (1975); See Williams v. Hoyt, 556 F.2d 1336, 1339-40 (5th Cir. 1977), cert. denied, 435 U.S. 946, 98 S.Ct. 1530 (1978) (affirming jury verdict for the defendants where evidence was sufficient to show that mace was used only for the control for unruly prisoners and was, therefore, not excessive).
With regard to plaintiff's claims of cruel and unusual punishment, his complaint must fail. 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.
The only "injuries" Plaintiff claims to have suffered are back pain and numbness in the legs from sitting up for a long period of time. Plaintiff's Answers to the Court's Questions No. 14-15. Such conditions do not constitute "physical injury" as required under § 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. Han, 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)). Thus, Wright cannot prevail on his claim of "physical and emotional anguish." See Complaint ¶ V.
Next, wright claims that Defendants denied him proper decontamination and medical care after he was sprayed with the gas. Complaint ¶ V. In order to state a colorable claim for the denial of medical care under the Eighth Amendment, "a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976). "Deliberate indifference" under the Eighth Amendment occurs only where a prison official subjectively knows of and disregards a substantial risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 1979 (1994); Hare v. City of Corinth, Miss., 74 F.3d 633, 650 (5th Cir. 1996). However, it is well established that negligent or erroneous medical treatment or judgment does not provide a basis for a § 1983 claim. Graves v. Hampton, 1 F.3d 315, 319 (5th Cir. 1993). As long as jail medical personnel exercise professional medical judgment, their behavior will not violate a prisoner's constitutional rights. See Youngberg v. Romeo, 457 U.S. 307, 322-23, 102 S.Ct 2452, 2461-62 (1982). A disagreement over the appropriate medical treatment constitutes, at most, a possible claim of medical malpractice appropriately addressed under state law. E.g., Estelle v. Gamble, 429 U.S. at 107-08, 97 S.Ct. at 293; Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991); Fielder v. Bosshard, 590 F.2d 105, 107 (5th Cir. 1979).
In the case at bar, Plaintiff 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 pro se plaintiff's complaint). A review of Plaintiff's answers reflects that he has failed to articulate facts which, taken as true, would demonstrate that any Defendant was deliberately indifferent to his need for medical care. See Plaintiff's Answers to the Court's Questions No. 7. 8. 9, 10 16. His conclusory allegations, without more, are insufficient to establish liability under § 1983. 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).
To the extent if any, that Plaintiff's claims against these Defendants are grounded in negligence, the claims are without merit. Allegations of negligence do not present a cognizable basis for relief under the Civil Rights Act. See Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662 (1986) (holding that negligence is not actionable under § 1983); Davidson v. Cannon, 474 U.S. 344, 106 S.Ct. 668 (1986) (same).
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." Nietzke, 490 U.S. at 327, 109 S.Ct. at 1833. The claims set forth in the case at bar have no arguable basis in law.
IT IS THEREFORE ORDERED that the complaint is hereby dismissed as frivolous pursuant to 28 U.S.C. § 1915 (e)(2)(B)(i).