IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10697
Summary Calendar
VINCENT ORR ALEXANDER,
Plaintiff-Appellant,
versus
JNELL STILES, Correctional Officer IV;
GARY JOHNSON, Texas Department of Criminal
Justice, Executive Director; CHARLES C. BELL,
Warden I; PAUL SLOAN, Captain; RONALD FOX,
Major; KEVIN ANDIS, Captain; REYNELL LINDER,
Lieutenant; GLEN STOUDER, Inv II,
Defendants-Appellees.
__________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:02-CV-88
__________________________________________
November 6, 2002
Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM:*
Vincent Orr Alexander, Texas prisoner # 1030860, appeals the dismissal as frivolous and for
failure to state a claim of his 42 U.S.C. § 1983 lawsuit. He renews only his argument that Officer
Jnell Stiles used excessive force when slamming a door he was trying to help close, causing him injury
*
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 R. 47.5, the court has determined that this opinion should not be published and is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.
and amounting to an assault. Alexander has waived his claims against the other prison officials he
sued by failing to brief them. See Yohey v. Collins, 985 F.2d 222, 224-24 (5th Cir. 1993).
Alexander argues that the district court erred in sua sponte dismissing his suit. He contends
that he should have been permitted leave to amend before his claims were dismissed. Contrary to
Alexander’s argument, the Prison Litigation Reform Act requires a district court sua sponte to dismiss
a prisoner’s IFP civil rights complaint if the court determines that the action is frivolous or fails to
state a claim. Black v. Warren, 134 F.3d 732, 733 (5th Cir. 1998); see § 1915(e)(2)(B). The district
court’s determination that Alexander failed to state a claim for excessive force is reviewed de novo.
Black v. Warren, 134 F.3d 732, 733-34 (5th Cir. 1998) .
Not all applications of force in penal settings rise to the level of constitutional violations.
James v. Alfred, 835 F.2d 605, 606 (5th Cir. 1988). Force applied in pursuit of prison security may
be permissible; the relevant inquiry in determining the permissive level of force in the pursuit of prison
security is “‘whether force was applied in a good faith effort to maintain or restore discipline or
maliciously and sadistically for the very purpose of causing harm.’” Id. (citation omitted); see
Hudson v. McMillian, 503 U.S. 1, 7 (1992). As the district court determined, Alexander’s complaint
made no allegation that Officer Stiles slammed the door for any reason other than to secure the
premises; there are no facts demonstrating that he maliciously slammed the door on Alexander with
the intent to cause harm. The claim thus fails. See id.
Alexander devotes a significant portion of his brief to the argument that he has suffered
serious injuries as a result of the incident, stating, for the first time on appeal, that he is “waiting to
see a microsurgeon for a pending operation on [his] shoulder and neck” and urging that he will
provide supporting documentation if allowed to proceed. These new allegations will not be
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considered because they were not first presented to the district court. See Burch v. Coca-Cola Co.,
119 F.3d 305, 319 (5th Cir. 1997); Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Even
had they been presented to the district court, the court need not consider t hem because whether
Alexander sufficiently alleged that he suffered a serious injury is irrelevant in light of the
determination that he has not alleged facts sufficient to show that Officer Stiles acted with malice to
cause him harm, which defeats his excessive-force claim.
Alexander has not demonstrated any error in the district court’s judgment, and the judgment
is AFFIRMED. The district court’s dismissal of his complaint counts as a “strike” for purposes of
28 U.S.C. § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996). Alexander
is CAUTIONED that if he accumulates three strikes, he will be barred from proceeding in forma
pauperis in any civil action or appeal filed while he is incarcerated or detained in any facility unless
he is under imminent danger of serious physical injury. See 28 U.S.C.
§ 1915(g).
AFFIRMED; THREE-STRIKES WARNING ISSUED.
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