Opinion
7:01-CV-082-R
March 18, 2002
ORDER OF DISMISSAL
This is an action brought pursuant to 42 U.S.C. § 1983 by an inmate confined in the Alfred Unit of the Texas Department of Criminal Justice in Iowa Park, Texas.
Plaintiff claims that Defendants used excessive force against him when they forced him to the floor and assaulted him while he was wearing handcuffs. Complaint ¶ V.
"To prevail on an eight 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)).
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 plaintiffs complaint). However, he failed to allege any facts which, if taken as true, would indicate that the force used by Defendants was applied maliciously and sadistically in an effort to cause harm. See Plaintiffs Answer to the Court's Question No 4. Plaintiff's allegations regarding the use of force are conclusory in nature and, as such, fail to state a claim under the Civil Rights Act. See Fernandez-Monte, 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 R2d 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 plaintiffs 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 U.S. 883, 115 S.Ct. 220 (1994). Although in forma pauperis complaints are to be construed liberally, the Court is bound by the allegations of to 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. See Plaintiffs Answers to the Court's Questions No. 5 6.
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.
Plaintiff's claims of pain, bruising and abrasions 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. 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)). Therefore, Cosey cannot prevail on this claim.
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-EI v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert denied, 501 U.S. 1235, Ill 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 tint the complaint is hereby dismissed with prejudice as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
A copy of this order shall be transmitted to Plaintiff.
SO ORDERED