UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 95-40056
Summary Calendar
CURTIS ANTONIO DAVIS,
Plaintiff-Appellant,
VERSUS
G. DURANT, CO III, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
6:92 CV 6
( August 7, 1995 )
Before DAVIS, BARKSDALE and DeMOSS, Circuit Judges.
PER CURIAM:1
BACKGROUND
Texas prisoner Curtis Antonio Davis, proceeding pro se and in
forma pauperis ("IFP"), filed a complaint against four corrections
officers ("COs"). Davis alleged that CO Melissa Pike approached
1
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
him while he was changing his underwear in his cell. Davis asked
Pike if he needed to strip for her again, as administrative-
segregation inmates were required to do, before leaving his cell.
Pike responded "[n]o. I wasn't impressed the first time."
According to Davis, Pike and CO Gene Durant escorted Davis out
of his cell. Davis was handcuffed, with his hands behind his back.
Davis had a doctor's appointment. Davis commented that Pike did
not like black people. Pike answered that she did not like black
people and did not like Davis. Davis indicated that he had heard
about Pike prostituting herself to black people in the prison.
Pike suggested to Durant that the guards should deny Davis his
doctor's appointment if he continued to talk.
Davis alleged that he glanced behind himself. Durant told him
not to look around. Davis asked, "I can't look around me?" Durant
turned Davis around and led him back from whence they had come.
Davis asked to speak to a ranking officer. Durant ignored him.
Davis loudly requested to see a ranking officer. Durant jerked
Davis and hit him in the side of his face with a closed fist.
According to Davis, COs Deshane Bohannon and Michael Till
immediately tackled him. Till and Pike folded Davis' legs. Durant
continued punching him. Bohannon kicked Davis in his left
shoulder. Pike bent Davis' fingers. Davis believed that Pike was
attempting to break his fingers. Till kept Davis' head pressed to
the floor during the incident.
Davis alleged that Pike was directed to call out "fight!"
Pike giggled and said, "fight," in a quiet voice. Davis was taken
2
in metal leg-irons and wrist-irons to a nurse, who conducted a
visual examination of Davis. Bohannon applied pressure to Davis'
wrists and fingers during the examination. Bohannon also
complimented Durant on his ability to hit hard. According to
Davis, two ranking officers refused to ease the pressure on his
handcuffs or order the COs to stop trying to break Davis' fingers.
Davis alleged that he might have suffered a fractured jaw. He
alleged that he also suffered scarred tissue under his wrists, a
severely bruised left shoulder, and psychological damage.
Davis contended that Durant violated his rights under the
Fourth, Eighth, and Fourteenth Amendments by attacking him. He
contended that Durant conspired to violate his right to medical
treatment. Davis contended that Bohannon violated his rights under
the Fourth, Eighth, and Fourteenth Amendments by participating in
the attack. He contended that Pike violated his rights by
participating in the attack and conspired to violate his right to
medical treatment. He also accused Pike of making a racial slur
and "[d]eprivation of privacy, while looking upon my nudity; and
[d]egradation of my [m]anhood, in her lucid, lurid, and perversive
[sic] comment, in reference to her visual inspection of my nude
body (namely, my private part)[.]" Davis contended that Till
violated his Fourth, Eighth, and Fourteenth Amendment rights by
participating in the attack.
The magistrate judge held a hearing pursuant to Spears v.
McCotter, 766 F.2d 179 (5th Cir. 1985). Davis repeated his
allegations regarding Pike's invasion of his privacy and her
3
comment about his physique. He testified that Durant led him back
towards his cell after he looked out the window and questioned
Durant's directive not to look around. According to Davis, Durant
jerked him and hit him in the jaw after he shouted to see a ranking
officer. Almost simultaneously, Bohannon grabbed Davis' legs and
Bohannon, Till, and Durant lifted Davis and dropped him to the
ground. Till pressed Davis' head on the floor while Durant punched
Davis. Bohannon would kick Davis in the shoulder whenever Davis
would attempt to move his head to avoid Durant's blows. Finally,
Durant told Pike, who was attempting to break Davis' fingers, to
yell "fight". Pike laughed and quietly said, "fight". The guards
escorted Davis to the office and put leg cuffs on him. Durant and
Bohannon were attempting to break Davis' fingers. Two ranking
officers refused to intervene and stop the guards from attempting
to break Davis' fingers. Davis believed that a videotape would
show Durant and Bohannon attempting to break his fingers. He
believed that X-rays would show a jaw injury. Davis testified that
he was already restrained when Pike attempted to break his fingers.
Davis did not object to the introduction of his medical
records at the Spears hearing. Dr. Ford testified that Nurse Tam
Vo examined Davis. Vo noted that Davis' handcuffs were tight but
that Davis suffered no hand injury. Vo recommended that Davis'
handcuffs be loosened. The next day, Davis complained that his jaw
might be broken and told Vo that chewing was painful. Vo noted
tenderness in Davis' right cheek. Vo diagnosed no fracture and
ordered X-rays. Those X-rays were normal. The clinic notes, X-ray
4
notes, and Vo's notes regarding the use of force support Ford's
testimony.
Davis testified that he suffered great pain from the blows to
his jaw. He asserted that the other guards were not assisting
Durant to restrain him when they held him down and attempted to
break his fingers. Davis averred that he already was restrained
when the other guards assisted Durant.
The magistrate judge ordered Durant to answer Davis'
complaint. The magistrate judge dismissed Davis' claims against
Bohannon, Pike, and Till with prejudice as frivolous. He found
that those three guards acted in a good-faith effort to restore
discipline and therefore did not violate Davis' Eighth Amendment
right against cruel and unusual punishment.
The magistrate judge denied Davis' first motion to reconsider
the dismissal of his claims against Bohannon, Pike, and Till.2 The
magistrate judge granted Davis leave to amend his complaint. In
his amended complaint, Davis, represented by counsel, reiterated
his allegations and claims against Durant, Bohannon, Pike, and
Till. Davis added claims of assault and battery and negligence.
2
FED. R. CIV. P. 59(e) requires that a motion to amend or
alter a judgment be served within ten days of the entry of
judgment. The district court's order of dismissal was not a
final judgment. See FED. R. CIV. P. 54(b). Davis' motion
therefore was not governed by Rule 59(e). Nor was his motion
governed by FED. R. CIV. P. 60(b). "A Rule 60(b) motion cannot be
filed until a final judgment has been entered." McMillan v.
MBank Fort Worth, 4 F.3d 362, 366 (5th Cir. 1993). Davis' motion
was unauthorized under the Rules and was of no effect. See id.
at 367.
5
Davis filed a motion to reconsider his privacy claim against Pike,
but later withdrew that motion.
Davis filed a third motion for reconsideration.3 Davis
contended that the district court should have construed his
complaint liberally to give rise to a claim that the defendants
conspired to inflict cruel and unusual punishment on Davis. He
also contended that Pike and Durant retaliated against him for
exercising his right to freedom of speech. Davis sought leave to
file a second amended complaint incorporating his new claims.
The magistrate judge denied Davis' third motion for
reconsideration. He initially granted, then later denied, Davis'
motion for leave to file a second amended complaint.
A jury heard Davis' claims that Durant violated his Eighth
Amendment rights and battered him. The jury found for Durant. The
magistrate judge entered judgment for Durant and granted Davis an
extension of the time in which to file his notice of appeal.
Durant filed a timely notice of appeal.
OPINION
Davis contends that the jury's verdict was contrary to the
evidence produced at trial. He also contends that all of the
defendants committed assault and battery and violated state law.
The clerk of this court granted Davis' unopposed motion to
withdraw his motion in this court for production of a trial
3
Because Davis filed his motion before the district court
entered its final judgment, the "reconsideration" aspect of that
motion was unauthorized and was without effect. See McMillan, 4
F.3d at 366.
6
transcript at government expense.4 Davis is obliged to provide
this court with a copy of any transcripts necessary for review of
his contentions. Powell v. Estelle, 959 F.2d 22, 26 (5th Cir.),
cert. denied, 113 S. Ct. 668 (1992). Without a transcript, this
court cannot review the district court's disposition of Davis'
claims that Durant applied excessive force or that Till, Bohannon,
and Pike held him down while Durant hit him. See id.; Richardson
v. Henry, 902 F.2d 414, 416 (5th Cir. 1990), cert. denied, 498 U.S.
901 & 1069 (1991). This court therefore will not consider Davis'
contention that Durant used excessive force with the assistance of
the other officers.
Regarding Davis' state-law claims, those claims were first
raised in his first amended complaint. In that complaint, which
was prepared by an attorney, Davis contended that the defendants,
acting together, assaulted and battered him or acted negligently.
Because Davis' state-law claims are based on all of the defendants
acting in concert during the beating allegedly administered by
4
Davis' motion indicated that he would lack the funds to
pay the postage necessary to transmit the transcript to this
court if it was provided to him. Davis moved to withdraw his
motion or, in the alternative, for this court to allow him to
proceed without payment of postage. The grant of Davis' motion
does not make clear which of Davis' requests was granted. Davis
complains that the trial was not transcribed by order of the
district court. He does not, however, renew his transcript
motion or challenge the grant of his motion phrased in the
alternative. TDCJ provides free postage for indigent prisoners.
TDCJ INMATE ORIENTATION HANDBOOK § 3.9.7.1 (1990). Davis could have
obtained postage for the transcript had he prevailed on his
motion. The court could have informed Davis of TDCJ's postage
policy had Davis' motion been forwarded for ruling by the clerk's
office. Because Davis does not challenge the grant of his motion
stated in the alternative, this court need not consider whether
to reopen that motion.
7
Durant, this court cannot consider those claims without a trial
transcript.
Davis contends that the magistrate judge should have
considered his privacy claim against Pike. He contends that Pike
violated his right to privacy. The magistrate judge did not
consider Davis' claim when he dismissed his claims against Pike as
frivolous.
This court reviews a district court's dismissal of a pauper's
complaint as frivolous under the abuse-of-discretion standard. A
district court may dismiss a pauper's complaint as frivolous under
28 U.S.C. § 1915(d) "`where it lacks an arguable basis either in
law or in fact.'" Denton v. Hernandez, 504 U.S. 24, 31-33 (1992)
(quoting Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The presence of female guards during a strip search of a male
prisoner does not violate the prisoner's right to privacy. Letcher
v. Turner, 968 F.2d 508, 510 (5th Cir. 1992). Pike did not violate
Davis' rights when she allegedly viewed him naked.
Moreover, verbal harassment alone does not constitute a
constitutional violation. McFadden v. Lucas, 713 F.2d 143, 146-47
(5th Cir.), cert. denied, 464 U.S. 998 (1983). Pike did not
violate Davis' rights when she allegedly commented that she was
unimpressed with Davis' nudity. Because Davis' privacy claim was
frivolous, this court need not remand that claim for consideration
by the magistrate judge.
Davis alleges that Pike attempted to break his fingers and
that Bohannon kicked and punched him. He contends that the
8
defendants generally inflicted cruel and unusual punishment on him.
Construed liberally, Price v. Digital Equip. Corp., 846 F.2d 1026,
1028 (5th Cir. 1988), Davis' brief contends that Pike and Bohannon
individually violated his Eighth Amendment rights.
When considering such an excessive-force claim, "the core
judicial inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and
sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7
(1992).
In determining whether the use of force was
wanton and unnecessary, it may also be proper
to evaluate the need for application of force,
the relationship between that need and the
amount of force used, the threat "reasonably
perceived by the responsible officials," and
"any efforts made to temper the severity of a
forceful response."
Id. (citation omitted).
That is not to say that every malevolent touch
by a prison guard gives rise to a federal
cause of action. The Eighth Amendment's
prohibition of "cruel and unusual" punishment
necessarily excludes from constitutional
recognition de minimis uses of physical force,
provided that the use of force is not of a
sort "`repugnant to the conscience of
mankind.'"
Id. at 9-10 (internal and ending citations omitted).
The magistrate judge determined that Pike, Bohannon, and Till
were acting in a good-faith effort to restore order. While that
appears possible, it is not clear from Davis' allegations and his
testimony at the Spears hearing that the defendants were acting to
restore order.
9
However, the injuries Davis alleged resulted from Pike's and
Bohannon's actions constituted de minimis uses of force. Davis
alleged that he had a sore shoulder from Bohannon's kicks. He
alleged that Pike had bent his fingers in an attempt to break them.
He alleged that his handcuffs caused bruising. Davis' medical
records indicated no injuries to his hands other than numbness
caused by tight handcuffs. Davis challenged his medical records
only to the extent that they did not reflect a serious injury to
his jaw. The medical records did not indicate any injury to Davis'
shoulder. A district court may consider a defendant's properly
authenticated medical records at a Spears hearing to the extent
that those records do not contradict the plaintiff's allegations.
See Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991). Other
than the alleged jaw injury, Davis' alleged injuries were de
minimis. See Young v. Saint, No. 92-8420, slip op. at 3, 6-7 (5th
Cir. Mar. 31, 1993) (unpublished) (blow to hand resulting in two
small scratches, blood, and slight decrease in flexion a de minimis
use of force). Additionally, Davis' own allegations demonstrate
that Bohannon, Pike, and Till did not cause Davis' jaw injury.
Davis contends that Pike and Durant conspired to deprive him
of his doctor's appointment. Davis raised his contention in his
initial complaint. The magistrate judge did not consider Davis'
contention when dismissing his claims as frivolous.
Denial of medical care to an imprisoned convict is governed by
the Eighth Amendment. "In order to state a cognizable claim, a
prisoner must allege acts or omissions sufficiently harmful to
10
evidence deliberate indifference to serious medical needs."
Estelle v. Gamble, 429 U.S. 97, 106 (1976). Davis alleged only
that Pike and Durant decided to deny him a scheduled doctor's
appointment. He did not allege facts indicating that Pike and
Durant were deliberately indifferent to his serious medical needs.
Davis' contention that Pike and Durant conspired to deprive him of
medical treatment is frivolous. This court need not remand that
contention for consideration by the magistrate judge.
Davis contends that Pike and Durant retaliated against him for
exercising his right to pursue informal dispute resolution by
talking with a superior. He also contends that the defendants
conspired to deprive him of various, unspecified constitutional
rights.
Davis did not raise his retaliation claim in his initial
complaint. He raised no conspiracy claims other than that Pike and
Durant had conspired to deprive him of medical treatment. Nor did
Davis raise his retaliation and conspiracy claims in his first
amended complaint. He raised those claims in his third motion for
reconsideration, a motion that had no effect and was denied. See
McMillan, 4 F.3d at 366-67. Davis again raised his retaliation and
conspiracy claims in his proposed second amended complaint.
Construed liberally, Price, 846 F.2d at 1028, Davis' brief
contends that the district court should have granted him leave to
amend his complaint to add the retaliation and conspiracy claims.
A party must obtain leave of court to amend his pleadings once
responsive pleadings have been filed. FED. R. CIV. P. 15(a). Leave
11
is to be freely given when justice so requires. Id. A district
court's decision on a motion for leave to amend can be reversed
only for abuse of discretion. Boyd v. United States, 861 F.2d 106,
108 (5th Cir. 1988). District courts may deny leave only when
substantial reason exists for the denial. Jamieson v. Shaw, 772
F.2d 1205, 1208 (5th Cir. 1985).
Davis' conspiracy claim is intertwined with his excessive-
force claim against Durant. As discussed above, this court cannot
consider that claim. Davis has failed to show that he is entitled
to relief regarding the object of the alleged conspiracy. Davis
has not shown that the magistrate judge abused his discretion by
denying Davis leave to amend his complaint to add his conspiracy
claim.
If conduct alleged to constitute retaliation does not, by
itself, raise an inference of retaliation, then the allegation is
conclusory and frivolous unless the plaintiff makes other factual
allegations showing a retaliatory motivation. See Whittington v.
Lynaugh, 842 F.2d 818, 819-20 (5th Cir.), cert. denied, 488 U.S.
840 (1988). Davis alleged that the Durant jerked and hit him when
he yelled for a ranking officer. Davis' allegations did not raise
an inference of retaliation. Nor did Davis make factual
allegations showing a retaliatory motivation. Davis' retaliation
contention is frivolous. The magistrate judge did not abuse his
discretion by denying Davis' motion to amend his complaint.
Finally, this is Davis' third unsuccessful appeal in the past
year and his second unsuccessful appeal in a civil rights case.
12
Davis v. Napper, No. 93-4087 (5th Cir. Oct. 6, 1994) (unpublished);
Davis v. Scott, No. 92-4395 (5th Cir. Aug. 15, 1994) (unpublished).
Accordingly, this court warns Davis that future frivolous appeals
may result in sanctions against him. See Smith v. McCleod, 946
F.2d 417, 418 (5th Cir. 1991); Jackson v. Carpenter, 921 F.2d 68,
69 (5th Cir. 1991).
AFFIRMED.
opin\95-40056.opn
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