* Pursuant to 5 TH C IR . 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that this opinion should not be published and is not precedent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 5 TH C IR . R.

47.5.4. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-10348

(Summary Calendar)

JAMES STEEN,

Plaintiff-Appellant,

versus

ANGELA C. SNEED,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Texas

(7:96-CV-259-X)

September 17, 1997

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant James Steen, a prisoner in Texas, appeals

the dismissal of the civil r ights action he filed pursuant to 42

U.S.C. § 1983 against Defendant-Appellee Angela Sneed, a security1 766 F.2d 179 (5th Cir. 1985).

2 officer in the Texas Department of Criminal Justice. Steen assigns

as error the district court’s adoption of the magistrate judge’s

findings and conclu sions, contending adoption was premature; the

determination by the court that Steen’s complaint failed to state

a claim because he did not allege physical injury; and the

dismissal of his complaint without allowing him an opportunity to

develop his claim further. Finding no reversible error, we affirm.

I

FACTS AND PROCEEDINGS

Steen alleges that Sneed ordered another inmate, Otis Daniel,

“to jump off a three story walkway”; that Daniel followed Sneed’s

order, jumping to his death; and tha t witnessing the incident

caused Steen emotional distress. He also alleges that Sneed

retaliated against him for reporting her role in the incident to

prison officials. A hearing was conducted pursuant to S pears v.

McCotter

, 1 in which Steen testified that, when the inmates’ cells

were about to be opened so that they could go to the showers,

Daniel told the officers that he would jump ove r the rail; that

upon the opening of Daniel’s cell he climbed on the rail of the

third floor; and that Sneed, who was on the first floor, looked up

at Daniel and told him to go ahead and jump, whereupon Daniel

jumped to his death.

Ste en also testified at the S pears hearing that Sneed2 The magistrate judge also determined that Steen lacked

standing to seek relief on behalf of Daniel and his family.

3 retaliated against him after he reported the incident, threatening

and aggravating him. Steen stated that he had nightmares after the

suicide and suffered emotionally and mentally but did not have any

physical injuries.

The magistrate judge determined that under the Prison

Litigation Reform Act (PLRA), Steen’s complaint failed to state a

cause because Steen denied incurring any physical injury, and pure

mental or emotional injuries do not sta te a cognizable action

(citing 42 U.S.C. § 1997(e)). The magistrate judge determined

moreover that even if Steen had alleged physical injury, his claim

should be dismissed because oral threats do not s tate a

constitutional violation. 2 The magistrate judge recommended

dismissal of Steen’s complaint with prejudice for failure to state

a claim.

A copy of the magistrate judge’s report was served on Steen on

March 7, and on March 13 he filed a “brief” in which he stated that

Sneed’s actions had caused emotional anguish that in turn required

Steen to obtain treatment for high blood pressure. The next day

the district court adopted the magistrate judge’s report and

recommendatio n after conducting an independent review of the

record, and dismissed Steen’s complaint with prejudice for failure

to state a claim. One week later, Steen filed objections to the

magistrate judge’s report, and stated that he had alleged a3 The district court determined that Steen lacked

sufficient funds to pay an initial partial filing fee for the

appeal and directed payment of the fee in monthly installments as

provided by 28 U.S.C. § 1915(b)(2).

4 Koetting v. Thompson , 995 F.2d 37, 40 (5th Cir. 1993).

5 See Kreimerman v. Casa Veerkamp, S.A. de C.V. , 22 F.3d,

634, 646-47 (5th Cir. 1994).

4 physical injury. Steen claimed that he suffered from high blood

pressure as a result of witnessing the incident. The district

court did not issue an additional order construing these postdismissal objections, and Steen timely filed a notice of appeal. 3

II

ANALYSIS

A. Adoption of Magistrate Judge’s Findings and Conclusions

.

In adopting the magistra te judge’s finding and conclusions,

the district court stated that it made “an independent review of

the pleadings, files and records in the case, and the Findings,

Conclusions and Recommend ation of the United States Magistrate

Judge.” We presume that “the district court did its statutorily

commanded duty in the absence of evidence to the contrary” when the

district court states that it conducted an independent review. 4

Moreover, even if the district court did not conduct a de novo

review, s uch error was harmless because Steen is entitled to

de novo review on appeal. Thus the district court’s adoption of

the magistrate judge’s findings and conclusions, even if premature,

is still not reversible error. 56 28 U.S.C. § 1915(e)(2)(B)(i) & (ii); see also

§ 1915A(b)(1); Fed. R. Civ. P. 12(b)(6).

7 Fernandez-Montes v. Allied Pilots Ass’n , 987 F.2d 278,

284 (5th Cir. 1993).

5 B. Dismissal of § 1983 Complaint

.

The PLRA amended 28 U.S.C. § 1915 to require the district

court to dismiss IFP prisoner civil rights suits if the court

determines that the action is frivolous or malicious or does not

state a claim on or upon which relief m ay be granted. 6 Applying

the standard of review applicable when reviewing dism issal for

failure to state a claim under Fed. R. Civ. P. 12(b)(6), i.e.,

de novo, we accept as true the plaintiff’s factual allegations (but

not conclusional allegations or legal conclusions). 7 Here the

district court did not construe Steen’s complaint as one arising

under the Eighth Amendment even though he complained of cruel and

unusual punishment. The court did, however, review Steen’s

complaint for a constitutional violation and determined that he had

not alleged the requisite “physical injury.” We agree. Even

construed most liberally, Steen’s complaints in his “brief” and his

post-dism issal objection allege not a physical injury but an

exacerbated medical condition (high blood pressure) purportedly

produced by non-physical, purely emotional, injury (witnessing the

suicide). We are convinced that the alleged resulting high blood

pressure under the facts of the instant case is not the kind of

“physical injury” required as the basis for an emotional suffering6

claim. Thus no reversible error resulted from dismissal of Steen’s

case.

C. Dismissal Following Spears’ Hearing

.

Ste en was afforded a S pears ’ hearing to allow him the

opportunity further to explain the factual basis for his claim and

to determine whether his complaint should be dismissed as

frivolous. Steen does not indicate what information he may have

obtained through discovery or how discovery would have helped him

further develop his claim. The thorough Spears hearing conducted

by the magistrate judge afforded Steen sufficient opportunities to

add information that would be relevant or helpful to his case, but

he failed to do so. Steen’s case depends on whether he has shown

a sufficient physical injury. The only injury Steen has alleged is

high blood pressure; as alleged, that is a remote or attenuated

result of an alleged injury that itself is purely emotional or nonphysical. The district court did not err in dismissing Steen’s

case without allowing him additional opportunity to develop his

claims.

III

CONCLUSION

Our de novo review of this case convinces us that no

reversible error resulted from the district court’s adoption of the

magistrate judge’s findings and conclusions, or from dismissing the

complaint without allowing further factual developmen t, or from

dismissing the complaint with prejudice as frivolous for failure to7

allege a physical injury. Steen’s alleged high blood pressure

resulting from emotional distress which in turn resulted from

witnessing the suicide is insufficient to constitute the requisite

“physical injury.” For the foregoing reasons, the rulings and

judgment of the district court are, in all respects,

AFFIRMED.