1Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). 

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United States Court of Appeals,

Fifth Circuit.

No. 96-11096

Summary Calendar.

Lee Andrew SIGLAR, II, Plaintiff-Appellant,

v.

Elvis HIGHTOWER; Ejike S. Nwose; James L. Alexander, Co II;

Melissa K. Whitehead, Defendants-Appellees.

May 8, 1997.

Appeal from the United States District Court for the Northern

District of Texas.

Before JONES, DeMOSS and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Lee Andrew Siglar, II, Texas prisoner # 96054477 ("Siglar"),

filed a civil rights action pursuant to 42 U.S.C. § 1983 against

Warden Elvis C. Hightower ("Hightower") and Corrections Officers

Ejike S. Nwose ("Nwose"), James L. Alexander ("Alexander") and

Melissa Whitehead ("Whitehead"). The district court dismissed

Siglar's complaint as frivolous under 28 U.S.C. § 1915(e)(2) and

Siglar appealed.

FACTS

Siglar alleged the following facts in his complaint, in

response to the court's questionnaire and in a Spears1 hearing.

Siglar was stopped in the hall of his prison unit by Officer

Whitehead while returning from breakfast. Whitehead directed

Siglar to stand and face the wall while she searched him. A
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biscuit was found in his jacket pocket. Whitehead called for

backup. Nwose responded to Whitehead's call and verbally and

physically abused Siglar during the incident. Without provocation,

Nwose twisted Siglar's arm behind his back and twisted Siglar's

ear. Siglar's ear was bruised and sore for three days but he did

not seek or receive medical treatment for any physical injury

resulting from the incident. There is no allegation that he

sustained long term damage to his ear. Whitehouse and Alexander

witnessed the incident and did not intervene to protect Siglar from

Nwose. Hightower was the Warden of the unit and Siglar contends

that he was negligent in his supervision of Nwose and his handling

of Siglar's subsequent complaint against Nwose.

DISCUSSION

Siglar's complaint, filed in forma pauperis ("IFP") may be

dismissed as frivolous if it lacks an arguable basis in law or

fact. 28 U.S.C. § 1915(e)(2)(B)(i); Eason v. Thaler, 14 F.3d 8,

9 (5th Cir.1994). A complaint lacks an arguable basis in law if it

is based on an indisputably meritless legal theory, such as if the

complaint alleges the violation of a legal interest which clearly

does not exist. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.

1827, 1832-33, 104 L.Ed.2d 338 (1989). This court reviews a §

1915(e) dismissal for abuse of discretion. Graves v. Hampton, 1

F.3d 315, 317 (5th Cir.1993).

The district court held that Siglar's claim is without an

arguable basis in law. It is clear that verbal abuse by a prison

guard does not give rise to a cause of action under § 1983. See
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Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993). The

district court then determined that no qualifying physical injury

resulted from the incident. The district court referenced a new

statutory provision, 42 U.S.C. § 1997e(e), enacted as part of the

Prison Litigation Reform Act, which provides:

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 question for this court is whether Siglar's bruised ear

amounts to a "physical injury" that can serve as the basis for his

excessive force or mental and emotional suffering claims. The

Supreme Court has defined the parameters for Eighth Amendment

claims arising out of injuries suffered by prisoners at the hands

of prison guards: whether force was applied in good-faith effort

to maintain or restore discipline, or maliciously and sadistically

to cause harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995,

999, 117 L.Ed.2d 156 (1992). The absence of serious injury, while

relevant to the inquiry, does not preclude relief. Id. However,

the Eighth Amendment's prohibition of cruel and unusual punishment

excludes from constitutional recognition de minimus uses of

physical force, provided that the use of force is not of a sort

"repugnant to the conscience of mankind." Id. at 10, 112 S.Ct. at

1000.

In the absence of any definition of "physical injury" in the

new statute, we hold that the well established Eighth Amendment

standards guide our analysis in determining whether a prisoner has

sustained the necessary physical injury to support a claim for
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mental or emotional suffering. That is, the injury must be more

than de minimus, but need not be significant. See id.

We conclude that Siglar's alleged injury—a sore, bruised ear

lasting for three days—was de minimus. Siglar has not raised a

valid Eighth Amendment claim for excessive use of force nor does he

have the requisite physical injury to support a claim for emotional

or mental suffering. We therefore hold that the district court did

not abuse its discretion in ordering the dismissal of Siglar's

claims.

AFFIRMED.