UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 01-11032

EDWARD JAMES CALHOUN,

Plaintiff-Appellant,

VERSUS

CLYDE HARGROVE; MARK ATKINS,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

November 15, 2002

Before HIGGINBOTHAM, DUHÈ, and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Appellant, Edward James Calhoun, a Texas state prison inmate,

filed suit pro se under 42 U.S.C. § 1983 agai nst two prison

officials for violations of his Eighth and Fo urteenth Amendment

rights. After Calhoun failed to respond to the Appellees’ Motion

for Summary Judgment, the magistrate judge construed the motion as

one for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), and

dismissed Calhoun’s claims for failure to state a claim. Calhoun

now appeals.23 BACKGROUND

On October 28, 1999, Appellant Edward James Calhoun, Jr.,

Texas state prisoner, filed a § 1983 complaint against Captain

Clyde Hargrove (Captain of Securi ty), for abuse, mistreatment,

denial of due process, and cruelty, and Lieutenant Mark Atkins

(Lieutenant of Security), for abuse, mistreatment, and failure to

report or stop the fo rmer’s abuse. Calhoun alleged that he was

assigned to work in the prison’s administrati on building as a

support services inmate porter. His duties included mopping,

sweeping, and waxing floors, emptying trash, clea ning windows,

dusting offices, cleaning restrooms, movi ng furniture, and other

janitorial duties. He alleged that he suffered from hypertension,

a sthma, epileptic seizures, and glaucoma and that he had inju red

his left knee in a fall and had suffered a head injury. Because of

his medical restrictions, he claims he was limited to a four-hour

work schedule. His restrictions included limitations on walking,

standing, and lifting. He alleged that the Appellees were aware or

should have been aware of these restrictions. Calhoun alleged that

while he was working under Captain Hargrove, Hargrove cal led him

names like “crack smoker,” “thief,” and “whore.”

Calhoun alleged that on numerous occasions, Hargrov e called

him and his co-worker, inmate Ronald Paul Williams, into his office

and ordered them to pick up sunflower seeds and the shells that he

had spit on the floor. Then, before they could leave the room,4

Hargrove would spit another handful of seeds on the floor and would

order them to pick them up. Calhoun alleged that despite his

reminding Hargrove of his work r estrictions, Hargrove routinely

made him work 10, 12, and 14-hour days. Calhoun alleged that if

Hargrove was not around, L ieutenant Atkins would allow him to

return to his cell after he completed his tasks. However, if

Hargrove was there, Atkins would send him to Hargrove, who would

make him work more. Calhoun alleged that Atkins knew that Hargrove

was working him beyond his physical abilities and medical

restrictions but failed to intervene or report the violations.

Calhoun alleged that one day after he and Williams had worked

for 10 hours, Hargrove allowed them to have lunch only after they

got on their knees and begged for it. Calhoun complained that

Atkins did not report this incident. He alleged that he spent 12

hours stripping and waxing the floors in June 1999, because

Hargrove refused to call out the inmate who usually helped with the

floors. Calhoun asserted that after he reported the abuses,

someone informed Hargrove that he had done so. Consequently, when

he returned to work, Hargrove called him into his office and

threatened to make his life miserable. Calhoun alleged that on

June 24, 1999, Hargrove then went into his porter’s supply closet

and pulled all the towels and cleaning rags fromthe shelves and

threw them on the floor. Calhoun refolded the towels and rags, and

Hargrove again threw them onto the floor. Calhoun refolded them

again and Hargrove again threw them onto the floor. When Calhoun5

asked if he could leave becau se he had been working for eight

hours, Hargrove said no. Around midnight, Hargrove called Calhoun

into his office and ordered him to pick up sunflower seeds he had

spit on the floor. After Calhoun finished picking them up,

Hargrove spit more seeds on the floor and ordered Calhoun to pick

them up. Hargrove allegedly repeated this conduct twice more that

night. After picking the seeds up for the fourth time, Calhoun

alleged that he almost passed out because of high blood pressure.

Calhoun alleged that his blood pressure was near stroke level, but,

that after one hour of supervision at the infirmary, it had

stabilized. He alleged that on August 6, 1999, he was relieved of

all job duties.

Calhoun then filed the present suit seeking injunctive relief

and compensatory and punitive damages. The Appellees filed an

answer, and all of the parties consented to proceed before a

magistrate judge. The Appellees then filed a motion for summary

judgment, but bec ause the motion for summary judgment did not

contain any evidentiary support, such as affidavits or prison

records, the magistrate judge construed it as a motion to dismiss

for fai lure to state a claim upon which relief could be granted

pursuant to Fed. R. Civ. P. 12(b)(6) and granted it. Judgment was

entered on August 1, 2001.

On August 8, 2001, Calhoun filed a motion for new trial and a

notice of appeal. Relying on Calhoun’s assertion in his motion for

new trial that he was never served with the motion for summary1 Though the exact procedural history of this case is

unorthodox, the only issue of concern to this panel is whether the

original complaint should have been dismissed for failure to state

a claim.

6 judgment and on the defendants’ failure to file a response, the

magi strate judge granted Calhoun’s motion and vacated its

memorandum opinion and judgment. The Appellees filed a motion for

reconsideration and motion to strike pleadings, alleging that they

were not served with the motion for new trial. Attached to their

motion were documents establishing that Calhoun was served with

their motion for summary judgment. On September 21, 2001, the

magistrate judge granted the defendants’ motion and (1) vacated its

order granting Calhoun’s motion for new trial, (2) reinstated its

memorandum opinion and judgment, and (3) ordered Calhoun to show

cause why sanctions should not be imposed for making a false

representation to the court. Subsequently, on September 27, 2001,

Calhoun filed a respo nse to the defendants’ motion for

reconsideration and to strike pleadings alleging, inter alia

, that

he did not receive a copy of their motion for summary judgment. On

October 2, 2001, Calhoun filed a response to the court’s order

reinstating its judgment. On October 30, 2001, the magistrate

judge entered an order construing Calhoun’s response to its order

as a motion for a new trial pursuant to Fed. R. Civ. P. 59 and

denied it. Calhoun timely filed his notice of appeal from the

district court’s order. 17 DISCUSSION

This Court reviews de novo a district court’s granting a

motion to dismiss for failure to state a claim. B lackburn v. City

of M arshall , 42 F.3d 925, 931 (5th Cir. 1995). In considering a

motion to dismiss for failure to state a claim under Rule 12(b)(6),

the court must accept all well-pleaded facts as true and view them

in the light most favorable to the plaintiff. McCartney v. First

Ci ty Bank , 970 F.2d 45, 47 (5th Cir. 1992). “It is

well-established that ‘pro se complaints are held to less stringent

standards than formal pl eadings drafted by lawyers.’” T aylor v.

Books A Million, Inc. , 296 F.3d 376, 378 (5th Cir. 2002) (quoting

Miller v. Stanmore , 636 F.2d 986, 988 (5th Cir. 1981)).

A claim for relief under § 1983 must allege the deprivation of

a right secured by the Constitution or the laws of the United

States by a defendant acting under color of state law. W ong v.

Stripling , 881 F.2d 200, 202 (5th Cir. 1989). Furthermore, under

42 U.S.C. § 1997e(e), “[n]o 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.”

Calhoun essentially alleges that he was verbally abused, that

he was once forced to beg for a meal (wh ich he eventually

received), and that he was forced to work beyond the medical8

limitations set for him causing him to have dangerously elevated

blood pressure. Neither the verbal abuse, nor the begging for the

meal allege a physical injury to Calhoun and, though troubling, do

not overcome § 1997e(e). Furthermore, to establish an Eighth

Amendment claim, Calhoun must demonstrate, inter alia

, an objective

component of conditions so serious as to deprive him of the minimal

measure of life’s necessities. Berry v. Brady , 192 F.3d 504, 507

(5th Cir. 1999). Therefore, Calhoun’s claims of verbal abuse are

not actionable under § 1983, see Siglar v. Hightower

, 112 F.3d 191,

193 -94 (5th Cir. 1997), and neither are his claims that he was

forced to once b eg for food that he eventually received. S ee

Berry

, 192 F.3d at 507-08 (dismissing inmate’s claim that he was

denied admittance to the dining hall for an evening meal on eight

occasions over a seven-month period).

Whether Calhoun’s claim that he was forced to work beyond his

medical limitations which, in turn, led to his unusually high blood

pressure alleges a physical injury is less clear. This inquiry is

also of importance in analyzing Calhoun’s Eighth Amendment claims.

The Supreme Court has held that the treatment a prisoner receives

in prison and the conditions under which he is confined are subject

to scrutiny under the Eighth Amendment. F armer v. Brennan

, 511

U.S. 825, 832 (1994). “[A] prison official may be held liable

under the Eighth Amendment for denying humane conditions of

confinement only if he knows that inmates face a substantial risk9

of serious harm and disregards that risk by failing to take

reasonable measures to abate it.” I d. at 847. In other words, the

prison official must have a sufficiently culpable state of mind,

which is one of “deliberate indifference” to inmat e health or

safety. I d. at 834. To find that an official is deliberately

indifferent, it must be proven that “the official knows of and

disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exist s, and he

must also draw the inference.” Id. at 837.

Though the magistrate judge analyzed Calh oun’s claim as an

excessive force claim and found the injury to be de minimus and not

actionable, we believe that Calhoun’s complaint, at the very least,

also alleges deliberate indifference on the part of Hargrove.

Calhoun alleged that he had a medical condition, had a set limit of

four hours of maximum work time, and that Hargrove kne w of this

limit and his medical condition but made him work in excess of

these time limits. Calhoun also alleged that this ultimately led

to his elevated blood pressure. Therefore, Calhoun has met the

requirements needed to overcome a 12(b)(6) motion for failu re to

state a claim. As for alleging a physical injury under § 1997e(e),

Calhoun has alleged that his blood pressure was at near-stroke

levels. The magistrate failed, however, to hold any sort of

hearing, evidentiary or otherwise, into the level of harm resulting10

f rom the elevated blood pressure. High blood pressure, or

hypertension, can have severe negative impacts on a person’s heart,

arteries, brain, eyes and kidneys, and a systolic reading (the

first or top number in a blood pressure reading) of over 210 is

considered severely elevated and may be a medical emergency that

requires immediate attention. A merican Medical Association

,

Essential Guide to Hypertension 33-45, 52 (1998). Calhoun had a

reading of 220/195 at one point just after the incident and was not

permitted to leave the infirmary until his pressure was 165/99.

This caused Calhoun to allegedly be light-headed and be near

stroke-level. Based on these allegations, the magistrate judge

should have inquired further into the severity of the damage done

to Calhoun to determine if any actual injury did occur to him as a

result of this incident.

Calhoun also makes claims under the Fourteenth Amen d ment

claiming that the Appellees denied him due process by failing to

adhere to his medical and work restrictio ns. This is really a

restatement of his Eighth Amendment claim, however, and claims that

are c overed by such specific constitutional provisions must be

analyzed under the standard appropriate to that specific provision

and not under the rubric of substantive due process. Graham v.

Connor

, 490 U.S. 386, 395 (1989). As for Calhoun’s claims against

officer Atkins, except for a conclusional s tatement in his reply

brief, Calhoun has not re-urged his argument that Atkins is liable11

for his failure to intervene or report Hargrove’s actions, and as

such, those claims are waived. S ee Yohey v. Collins

, 985 F.2d 222,

225 (5th Cir. 1993) (holding claims raised for first time in reply

brief to be waived).

CONCLUSION

The level of abuse alleged by Calhoun, which, if true, can

only be described as malicious hazing on the part of Hargrove, is

troubling. It is clear that Calhoun has at least alleged a

deprivation of his Eighth Amendment right to be free from cruel and

unusual punishment because he has alleged that Hargrove knew of his

physical and medical limitations and forced him to work in excess

of those limits, thus endangering Calhoun’s life. However,

Calhoun’s suit is not actionable unless there exists a showing of

physical injury. 42 U.S.C. § 1997e(e). Having carefully reviewed

the parties’ respective briefs and the record, we hold that the

magistrate judge erred in granting the 12(b)(6) motion. We

therefore REVERSE IN PART and REMAND so that a hearing may be

conduct ed to determine the level of injury sustained by Calhoun.

It may be that no harm resulted from Hargrove’s alleged abuses, but

for now, Calhoun has sufficiently pled his complaint to overcome a

12(b)(6) motion.

REVERSED IN PART and REMANDED.12