IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-10391

ROCCO FUNARI, 

 Plaintiff - Appellant

v.

WARDEN, Warden of James V. Allred Unit; NFN WHEELER, 

 Defendants - Appellees

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 7:12-CV-11

Before JOLLY, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff Rocco Funari alleges that while he was incarcerated, Officer 

George Wheeler used excessive physical force against him when removing him 

from his cell. Proceeding in forma pauperis (“IFP”) and pro se, Funari brought 

this 42 U.S.C. § 1983 claim for damages, arguing that Officer Wheeler and the 

prison warden violated Funari’s Eighth Amendment right to be free from cruel 

and unusual punishment. 

The district court has a responsibility to dismiss an IFP complaint if it is 

frivolous, malicious, fails to state a claim, or seeks monetary relief from a 

 

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5th Cir. 

R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

July 14, 2015

Lyle W. Cayce

Clerk

 Case: 14-10391 Document: 00513114585 Page: 1 Date Filed: 07/14/2015
No. 14-10391

2

defendant with immunity. See 28 U.S.C. § 1915(e)(2)(B) (conferring same duty 

on this Court with respect to appeals). Here, the district court evaluated 

Funari’s IFP complaint, concluded it was legally frivolous, and dismissed the 

complaint pursuant to § 1915(e)(2)(B)(i). Funari appeals that dismissal.1

Construing the facts from the complaint in Funari’s favor, no reasonable 

jury could find that Officer Wheeler’s actions were “not a good faith effort to 

maintain or restore discipline.” See Hudson v. McMillian, 503 U.S. 1, 6-7 

(1992) (“[T]he core judicial inquiry [in an excessive-force claim] is . . . whether 

force was applied in a good-faith effort to maintain or restore discipline, or 

maliciously and sadistically to cause harm.”). That force was required at all 

was due to Funari’s repeated failure to comply with orders and his continued 

resistance to the officers once they entered his cell. Under the circumstances, 

the officers used no more force than was reasonably necessary to secure Funari. 

Because no reasonable jury could find that Officer Wheeler applied more force 

than “could plausibly have been thought necessary” to restrain Funari safely, 

Whitley v. Albers, 475 U.S. 312, 321 (1986), Funari’s IFP complaint fails to 

state a claim on which relief can be granted and must be dismissed.2 See 28 

U.S.C. § 1915(e)(2)(B)(ii). 

The district court’s dismissal of Funari’s complaint is, therefore,

AFFIRMED.

 

1 We review the district court’s determination that the complaint is frivolous for an 

abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (providing 

standard of review for frivolity dismissal under subsection (i)); Moore v. Mabus, 976 F.2d 268, 

270 (5th Cir. 1992) (listing factors this Court can consider in evaluating a frivolity-based 

dismissal).

2 “[W]e may affirm the district court for any reason supported by the record, even if 

the district court did not rely on that reason.” Coffin v. Blessey Marine Servs., Inc., 771 F.3d 

276, 285 (5th Cir. 2014) (citing United States v. Gonzalez, 592 F.3d 675, 681 (5th Cir. 2009)).

We take no position on the district court’s conclusion that Funari’s complaint was frivolous.

 Case: 14-10391 Document: 00513114585 Page: 2 Date Filed: 07/14/2015