IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
No. 95-40594
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JAMES W. WILLIAMS,
Plaintiff-Appellant,
versus
W. STEVENS; SAM PALASODA;
S. BUTLER; GASPAR CANTU; C. ELLINGBURG;
BARBARA ROSS; MCALVANEY,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. G-93-CV-29
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(September 22, 1995)
Before JOLLY, DAVIS and JONES, Circuit Judges.
PER CURIAM:*
James W. Williams moves for leave to proceed in forma
pauperis (IFP) on appeal. To proceed IFP a movant must show that
he is a pauper and that he will present a nonfrivolous appellate
issue. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).
Williams' poverty is not in question. This court may affirm a
district court's dismissal of an IFP proceeding under 28 U.S.C.
*
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that this opinion should not be published.
No. 95-40594
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§ 1915(d) when it lacks an arguable basis in fact or law. Ancar
v. Sara Plasma, 964 F.2d 465, 468 (5th Cir. 1992). The abuse-of-
discretion standard applies. Id.
The "initial assessment of the in forma pauperis plaintiff's
factual allegations must be weighted in favor of the plaintiff."
Denton v. Hernandez, 112 S. Ct. 1728, 1733 (1992). Section
1915(d) "cannot serve as a factfinding process for the resolution
of disputed facts." Id. "[A] finding of factual frivolousness
is appropriate when the facts alleged rise to the level of the
irrational or the wholly incredible, whether or not there are
judicially noticeable facts available to contradict them." Id.
An IFP complaint may not be dismissed "simply because the court
finds the plaintiff's allegations unlikely." Id.
Williams contends that the district court erred in
dismissing his complaint under § 1915(d), asserting that he made
a sufficient showing that he was subjected to an excessive use of
force and that the defendants were deliberately indifferent to
his serious medical needs.
Excessive Force
When considering 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). A number of factors are relevant, including the
extent of the injury suffered. Also:
[i]n determining whether the use of force was
wanton and unnecessary, it may also be proper
to evaluate the need for application of
No. 95-40594
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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).
Williams alleged that he suffered pain and numbness from the
incident, and that his blood circulation was impaired. Williams
also alleged that he suffered pain and numbness from the
incident, and that his blood circulation was impaired. In the
instant case, the district court focused on the nature of
Williams' alleged injury only, finding that he suffered "no
injury." The district court made no findings regarding whether
force was applied in a good faith effort to maintain or restore
discipline, or whether it was administered maliciously and
sadistically to cause harm. See Rankin v. Klevenhagen, 5 F.3d
103, 106 (5th Cir. 1993).
Williams' factual allegations are not irrational or wholly
incredible, and his legal argument does not lack an arguable
basis. See Hudson, 503 U.S. at 7. His IFP complaint should not
have been dismissed under § 1915(d) in this regard. See Ancar,
964 F.2d at 468.
No. 95-40594
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Deliberate Indifference
A official acts with a deliberate indifference under the
Eighth Amendment "only if he knows that inmates face a
substantial risk of serious harm and [he] disregards that risk by
failing to take reasonable measures to abate it." Farmer v.
Brennan, 114 S. Ct. 1970, 1984 (1994). The Farmer standard
applies in the context of a denial-of-medical-care claim. Reeves
v. Collins, 27 F.3d 174, 176-77 (5th Cir. 1994). Negligence,
neglect, and even medical malpractice do not state a claim under
§ 1983. Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
In his more definite statement, Williams stated that he
suffered a lot of unnecessary pain to his wrists and that he has
problems with his wrists on and off. He also alleged that his
blood circulation was impaired and that he was denied medical
treatment for four (4) days.
Because the district court did not address this claim, there
is no factual development of the record in this regard, including
Williams' prison medical records. Thus, § 1915(d) dismissal of
this claim was improper.
Due Process
In the district court, Williams alleged that his due process
rights were violated in conjunction with a prison disciplinary
hearing. He has failed to address this issue on appeal. Claims
not adequately argued in the body of an appellate brief are
deemed abandoned. See Brinkmann v. Dallas County Deputy Sheriff
Abner, 813 F.2d 744, 748 (5th Cir. 1987).
No. 95-40594
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The record supports the conclusion that the district court
abused its discretion by dismissing this action with prejudice
under § 1915(d). Williams has raised nonfrivolous appellate
issues; IFP is GRANTED.
The district court's § 1915(d) dismissal of Williams' due
process claim is AFFIRMED. However, the district court's
§ 1915(d) dismissal of Williams' excessive-force and deliberate-
indifference claims is VACATED and the matter REMANDED for
further proceedings as to these issues.
GRANT IFP. AFFIRM in part. VACATE and REMAND in part.