Rocco Funari v. Warden

Case: 14-10391 Document: 00513114585 Page: 1 Date Filed: 07/14/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 14-10391 United States Court of Appeals
Fifth Circuit

FILED
ROCCO FUNARI, July 14, 2015
Lyle W. Cayce
Plaintiff - Appellant Clerk

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* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
 Case: 14-10391 Document: 00513114585 Page: 2 Date Filed: 07/14/2015

No. 14-10391
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.
2