1 Spears v. McCotter, 766 F.2d 179 (5th Cir.1985). United States Court of Appeals,

Fifth Circuit.

No. 94-50465.

Danny Ray EASON, Plaintiff-Appellant,

v.

Billy HOLT, et al., Defendants-Appellees.

Jan. 26, 1996.

Appeal from the United States District Court for the Western District of Texas.

Before POLITZ, Chief Judge, and JONES and PARKER, Circuit Judges.

POLITZ, Chief Judge:

Da nny Ray Eason, a prisoner in the Texas Department of Criminal justice, Institutional

Division, appeals the dismissal of his 42 U.S.C. § 1983 complaint alleging the excessive use of force

by various prison officers in the Hobby Unit. Concluding that the district court erred in dismissing

the complaint for failure to state a claim, we vacate and remand.

Background

Eason, who is proceeding pro se and in forma pauperis, filed the instant complaint against

prison field officer Billy Holt. Eason alleged that on October 13, 1992 while quietly standing in a line

waiting to go to work, Holt called his name and told him to stop talking. Holt stood directly in front

of Eason, remarked that he was tired of the way Eason was eying him, and grabbed Eason 's shirt

collar and attempted to throw him to the ground. Eason claimed that Sergeant Craig Hughes and

Officers Steve Finley and James Holder then helped Holt shove him down. The officers handcuffed

Eason and proceeded to kick him. Eason alleged t hat he did not provoke the officers and that he

posed no threat.

At a Spears 1 hearing bef

o re t he magistrate judge, Eason testified that the excessive use of

force caused injuries to his left shoulder and arm, bruises on his legs, and scratches on his back. He

described the four officers' involve ment in the incident. The magistrate judge, noting that Eason's2 The magistrate judge relied upon Jackson v. Culbertson, 984 F.2d 699 (5th Cir.1993).

3 Jackson v. City of Beaumont Police Dept., 958 F.2d 616 (5th Cir.1992).

4 Hernandez v. Maxw ell, 905 F.2d 94 (5th Cir.1990) (citing Rankin v. City of Wichita Falls,

762 F.2d 444 (5th Cir.1985).

5 Id.

6 See Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995, 999, 117 L.Ed.2d 156 (1992);

Culbertson. complaint had named only Holt as a defendant, directed Eason to amend th e complaint to add the

other officers. Eason co mplied. The defendants moved to dismiss Eason's complaint under

Fed.R.Civ.P. 12(b)(6). The magistrate judge recommended granting the motion to dismiss, finding

that Eason had not alleged "any injury whatsoever" in his original or amended complaints and thus

had failed to state a legal claim. 2 In a footnote the magistrate judge acknowledged that Eason had

alleged some injury at the Spear s hearing, but concluded that such injury was de minimis and

therefore did not support the claim. Agreeing that Eason had not identified any injury, the district

court adopted the magistrate judge's findings and recommendations and dismissed the complaint with

prejudice. Eason timely appealed.

Analysis

We review the district court's dismissal of a 12(b)(6) motion d e novo, 3 accepting all we l l

pleaded averments as true and viewing them in the light most favorable to the plaint iff. 4 Dismissal

is not proper unless it appears, based solely on the pleadings, that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief. 5

To prevail on an eighth amendment excessive force claim, a plaint iff must establish that force

was not "applied in a go o d-fait h effort to maintain or restore discipline, [but] maliciously and

sadistically to cause harm," and that he suffered an injury. 6 In basing dismissal of the complaint on

its finding that Eason had not alleged injury stemming from the challenged incident, the district court

ignore d Eason's S

pears hearing testimony. This appeal presents the question of the proper

relationship between Spears testimony and filed pleadings.

In Spears, we authorized an evidentiary hearing in the nature of a Fed.R.Civ.P. 12(e) motion7 Neitzke v. Williams, 490 U.S. 319, 326, 109 S.Ct. 1827, 1832, 104 L.Ed.2d 338 (1989). The

Court explained that the cost of filing suit and fear of financial sanctions do not deter frivolous in

forma pauperis suits.

8 See Wilson v. Barrientos, 926 F.2d 480 (5th Cir.1991).

9 In Spears we suggested that the hearing would help to "dig beneath the conclusional

allegations; to reduce the level of abstraction upon which the claims rest; to ascertain exactly

what scenario the prisoner claims occurred, as well as the legal basis for the claim." 766 F.2d at

180.

10 See Neitzke. Although the initial IFP determination is based solely upon the prisoner's

economic status, the court retains the right to revoke IFP status and to dismiss the complaint

upon a finding that the complaint is malicious or frivolous. See Cay v. Estelle, 789 F.2d 318 (5th

Cir.1986), abrogated in part by Booker v. Koonce, 2 F.3d 114 (5th Cir.1993). In many cases the

court will be able to make this determination without a Spears hearing. See Barrientos.

11 Barrientos, 926 F.2d at 482. Although "the court may dispense with some of the typical

formalities of judicial proceedings," the judge must ensure "that the evidence considered is

authentic and reliable[; w]itnesses should be sworn; appropriate cross-examination should be

allowed; and documents should be properly identified and authenticated." Id. at 483. The judge

may also consider the credibility of witnesses to a limited extent. See Cay.

12 Spears; Watson v. Ault, 525 F.2d 886 (5th Cir.1976).

13 Spears, 766 F.2d at 181. See Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994) (referring to

Spears hearing and questionnaire as the "principal vehicles which have evolved for remedying

inadequacy in prisoner pleadings"). for more definite statement, as we confronted the difficult i e s of selecting meritorious prisoner

complaints from the "surfeit of meritless i n forma pauperis complaints in the federal courts," 7 and

sought an effective way to protect the right of indigent prisoners with valid claims to access to the

courts under 28 U.S.C. § 1915. 8 The S pears hearing is neither a trial on the merits nor a mini-trial;

rather, it aims to flesh out the allegations of a prisoner's complaint 9 to determine whether in forma

pauperis status is warranted or whether the complaint, lacking an arguable basis in law or fact, should

be dismissed summarily as malicious or frivolous under section 1915(d). 10

The Spears hearing grew out of the belief that allowing a district or magis trate judge to

question the prisoner regarding the nature of his or her complaint, in a controlled setting, 11 would be

more effective than the widely-used tool of sending questionnaires to prisoners for explication of their

allegations. 12 Like the questionnaires, we reasoned, a hearing would bring into focus the factual and

legal bases of prisoners' claims. 13 In authorizing the hearing in lieu o f such questionnaires, we14 Spears, 766 F.2d at 181. See Hollow ay v. Gunnell, 685 F.2d 150 (5th Cir.1982) (explaining

that questionnaire supplemented allegations in complaint).

15 See Watson; Jackson v. Vannoy, 49 F.3d 175 (5th Cir.) (stating that complaint amended by

a Spears hearing), cert. denied, --- U.S. ----, 116 S.Ct. 148, 133 L.Ed.2d 93 (1995); Adams v.

Hansen, 906 F.2d 192 (5th Cir.1990); Riley v. Collins, 828 F.2d 306, 307 (5th Cir.1987)

(explaining that Spears hearing gave plaintiff opportunity to orally "clarify, amend, and amplify"

the written pleadings).

16 See Cay, 789 F.2d at 323 (explaining that "questionnaire is ... made a part of the pleadings").

17 Neitzke. The Court explained that "the failure to state a claim standard of Rule 12(b)(6) and

the frivolousness standard of § 1915(d) were devised to serve distinctive goals, and that while the

overlap between these two standards is considerable, it does not follow that a complaint which

falls afoul of the former standard will invariably fall afoul of the latter." 490 U.S. at 326, 109

S.Ct. at 1832. See also Moore v. Mabus, 976 F.2d 268 (5th Cir.1992).

18 See Vannoy, 49 F.3d at 176 ("A complaint, as amended by a Spears hearing, may be

dismissed pursuant to a Rule 12(b)(6) motion.") (internal citation omitted) (emphasis added).

Even when a 12(b)(6) motion has been filed, the court must consider the motion

apart from its review under section 1915(d). City of Beaumont.

19 Compare w ith City of Beaumont (concluding that summary judgment motion filed the same

day as Spears hearing did not constitute part of the pleadings for Rule 12(b)(6) review). emphasized that the questionnaires "do not constitute an independent pleading." 14 Similarly

amplifying the allegations in the prisoner's complaint, 15 the Spears testimony likewise becomes a part

of the total filing by the pro se applicant. 16

The Supreme Court has underscored that a complaint's inadequacy under Rule 12(b)(6) does

not signify necessarily that it has raised a wholly insu bstantial federal claim warranting section

1915(d) dismissal. 17 Accordingly, the district judge may dismiss a complaint on the basis that it fails

to state a claim when the defendant has moved to dismiss the complaint under Rule 12(b)(6). 18 In

such circumstances, the Spears hearing testimony, mo difying the complaint, bears on the evaluation

of the legal sufficiency of the claim. 19

In the instant case, the court properly reached the question whether the complaint failed to

state a claim. The court erred, however, in disregarding Eason's relevant testimony during the S pears

hearing, for that testimony, as it related to essential allegations, was incorporated into the pleadings.

Further, the relevant Spears te st imony remained a part of the pleadings after Eason amended his20 Ordinarily amendment of the complaint would be unnecessary to incorporate the Spears

allegations. Nevertheless, as the magistrate judge explained, the amendment was necessary here

to apprise the additional defendants of the specific allegations against them, and to enable these

individuals to be served. See Fed.R.Civ.P. 4.

21 City of Beaumont.

22 Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

23 Although the district court did not explicitly refer to this rationale, it adopted all the findings

and recommendations of the magistrate judge.

24 Maxw ell. See also Neitzke, 490 U.S. at 327, 109 S.Ct. at 1832 ("What Rule 12(b)(6) does

not countenance are dismissals based on a judge's disbelief of a complaint's factual allegations.").

We note that in Hudson v. McMillian the Supreme Court abrogated the significant injury

requirement for excessive use of force claims. The Court also observed, however, that such

claims must allege more than a de minimis use of physical force in order to state a prima facie

case of eighth amendment violation. We express no opinion whether the objective component of

an excessive force claim now requires, in addition to more than a de minimis "use of force," a

threshold showing of some quantity of injury. Compare Hudson, 503 U.S. at 7, 112 S.Ct. at 999

(concluding eighth amendment does not permit in excessive force context "any physical

punishment, no matter how diabolic or inhuman, inflicting less than some arbitrary quantity of

injury"), w ith Norman v. Taylor, 25 F.3d 1259 (4th Cir.1994) ( en banc ) (extrapolating from de

minimis use of force language in Hudson a requirement that plaintiff must show more than de

minimis injury), cert. denied, --- U.S. ----, 115 S.Ct. 909, 130 L.Ed.2d 791 (1995). complaint, 20 even though the amended complaint itself superseded the original complaint under the

well-settled law of this circuit. 21 This view is bo t h co nsist ent with the S

pears goal of enabling

preliminary determinations to be based upon specific information, and promotes the rubric that we

are to construe pro se pleadings liberally. 22 Requiring a new hearing to particularize the prisoner's

allegations for every amended complaint would lead to an unacceptable waste of judicial resources.

Accordingly, following Eason's Spears testimony the pleadings must be taken to include an allegation

that the challenged use of force resulted in injury; dismissal of the complaint therefore was improper.

Finally, we are not persuaded by the magistrate judge's alternate theory for dismissing Eason's

complaint, notwithstanding the reference to the Spears hearing testimony. 23 The magistrate judge

co ncluded t hat any alleged injury was at best d e minimis, and thus indicated a de minimis use of

force. In discounting Eason's allegations of injury, the magistrate judge failed to accept as true, as

he must, the complaint's well-pleaded or articulated facts. 24 The alternative rationale does not provide

a basis to support the dismissal of Eason's complaint.

For the foregoing reasons, the judgment of the district court is VACATED and the matter isREMANDED for further proceedings consistent herewith.

EDITH H. JONES, Circuit Judge, concurring:

I concur in the court's decision to remand this case for further proceedings. The magistrate

judge acted too hastily in disposing of the factual disputes by means of a Spears hearing and dismissal

on the pleadings. Nevertheless, I do not read this opinion to undermine our previo us decisions,

predicated on Hudson v. McMillian, 503 U.S. 1, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992), whi ch

require proof of injury "albeit significant or insignificant" in order to recover from state actors for

their use of unconst it ut io nally excessive force. K night v. Caldw ell, 970 F.2d 1430, 1432 (5th

Cir.1992); J

ackson v. Culbertson, 984 F.2d 699, 700 (5th Cir.1993) (spraying of inmate with fire

extinguisher caused no injury and was therefore a de minimis use of physical force not repugnant to

the conscience of mankind).