IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

__________________________________________

LINARD EARL MUCKELROY, PRO SE, §

TDCJ-CID #490833, §

§

 Plaintiff, §

§

v. § 2:05-CV-0270

§

EDITH GARCIA and §

DENNIS E. WILSON, §

§

 Defendants. §

MEMORANDUM OPINION AND ORDER OF DISMISSAL

Plaintiff LINARD EARL MUCKELROY, acting pro se and while a prisoner incarcerated

in the Texas Department of Criminal Justice, Correctional Institutions Division, has filed suit

pursuant to Title 42, United States Code, section 1983 complaining against the above-referenced

defendants and has been granted permission to proceed in forma pauperis.

Plaintiff alleges that, on June 20, 2005, he argued with defendant GARCIA about making

a clothing exchange. He says that, after she opened his cell door, he kept part of his body

outside the cell door and leaned inside to reach for his dirty clothes. He says he responded to

GARCIA’s shouts by telling her he wanted a grievance and was going to file on her. Plaintiff

alleges defendant GARCIA responded, “I’ll give you a grievance,” and that the door then

slammed on his arm, neck, and shoulder area. Plaintiff says GARCIA then said, “Oh, did I do

that?”

Plaintiff complains defendant GARCIA did not respond to his calls to open the door so

he could go to the infirmary. Further, plaintiff claims defendant WILSON then came to his cell

and instructed plaintiff to place his hands behind his back. Plaintiff says he tried to explain that

 

 Case 2:05-cv-00270-J-BB Document 14 Filed 05/23/06 Page 1 of 4 PageID 63
 1

A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see,

Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).

 2

Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted

to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as

frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson

questionnaire.").

2

his arm, shoulder, and neck had been hit by the door, but defendant WILSON “grabbed

[plaintiff’s] injured arm, twisted it around [causing plaintiff pain], and swung it around to

[plaintiff’s] back as he handcuffed [plaintiff].”

Plaintiff requests compensatory and punitive damages.

JUDICIAL REVIEW

When a prisoner confined in any jail, prison, or other correctional facility brings an

action with respect to prison conditions under any federal law, the Court may evaluate the

complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir.

1990), if it is frivolous1

, malicious, fails to state a claim upon which relief can be granted, or

seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. 1915A;

28 U.S.C. 1915(e)(2). The same standards will support dismissal of a suit brought under any

federal law by a prisoner confined in any jail, prison, or other correctional facility, where such

suit concerns prison conditions. 42 U.S.C. 1997e(c)(1). A Spears hearing need not be

conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir.

1991)2

.

The District Judge has reviewed plaintiff's pleadings and has viewed the facts alleged by

plaintiff to determine if his claim presents grounds for dismissal or should proceed to answer by

defendants.

THE LAW AND ANALYSIS

 

 Case 2:05-cv-00270-J-BB Document 14 Filed 05/23/06 Page 2 of 4 PageID 64
3

The malicious and sadistic use of force to cause harm violates contemporary standards of

decency; however, not every malevolent touch, push, or shove by a prison guard gives rise to a

federal cause of action. Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 1000, 117 L.Ed.2d 156

(1992). A use of force which is not "repugnant to the conscience of mankind," Whitley v. Albers,

475 U.S. 312, 327, 106 S.Ct. 1078, 1088, 89 L.Ed.2d 251 (1986), is excluded from the Eighth

Amendment's prohibition of cruel and unusual punishment and is considered to be de minimis.

The Court finds no repugnant use of force by either defendant is evident here. Compare,

Olson v. Coleman, 804 F.Supp. 148, 150 (D.Kan. 1992) (finding a single blow to the head

causing a contusion to be de minimis and not repugnant) and Candelaria v. Coughlin, 787

F.Supp. 368, 374 (S.D.N.Y. 1992) (allegation of single incident of guard using force to choke

inmate distinguished from injuries alleged in Hudson), both cited with approval in Jackson v.

Culbertson, 984 F.2d 699, 670 (5th Cir. 1993) (spraying inmate with fire extinguisher found to

be de minimis and not repugnant to conscience of mankind); see, also, Knight v. Caldwell, 970

F.2d 1430, 1432-33 (5th Cir. 1992) (interrogatory in civil rights suit requiring jury to determine

whether arrestee suffered "injury" as result of alleged use of excessive force before considering

issue of damages found reasonable and not plain error). The force of which plaintiff complains

is clearly de minimis and outside the scope of the Eighth Amendment.

Moreover, the injury plaintiff claims to have suffered reinforces this conclusion of de

minimis force. Plaintiff claims a shoulder injury which caused him to seek medical aid on the

day of the incident. Plaintiff saw a nurse who gave him some Ibuprofen, a cell pass, a sling, a

heat pack, and instructed him to use hot packs for a few days. Plaintiff's injury is of such a

degree that, in the year following the incident, plaintiff has not submitted a single sick-call

 

 Case 2:05-cv-00270-J-BB Document 14 Filed 05/23/06 Page 3 of 4 PageID 65
4

request for care for injury from the incident.

The Prison Litigation Reform Act of 1995 (PLRA) requires a showing of injury which,

while it need not be significant, must be more than merely de minimis. Siglar v. Hightower, 112

F.3d 191, 193 (5th Cir. 1997). The injury plaintiff has alleged is clearly de minimis and will not

support a valid Eighth Amendment claim. Id. Consequently, plaintiff's claim lacks an arguable

basis in law and is frivolous. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d

338 (1989).

CONCLUSION

Pursuant to Title 28 U.S.C. sections 1915A and 1915(e)(2), as well as Title 42,

United States Code, section 1997e(c)(1),

IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to

Title 42, United States Code, Section 1983, by plaintiff LINARD EARL MUCKELROY is

DISMISSED WITH PREJUDICE AS FRIVOLOUS.

LET JUDGMENT BE ENTERED ACCORDINGLY.

A copy of this Order shall be mailed to plaintiff and to any attorney of record by

first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of

the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S.

District Court for the Eastern District of Texas, Tyler Division.

IT IS SO ORDERED.

ENTERED this 23rd day of May, 2006.

/s/ Mary Lou Robinson 

MARY LOU ROBINSON

UNITED STATES DISTRICT JUDGE

 

 Case 2:05-cv-00270-J-BB Document 14 Filed 05/23/06 Page 4 of 4 PageID 66