IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-60084
Summary Calendar
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CARL LEE STOKES,
Plaintiff-Appellant,
versus
NATCHEZ POLICE DEPARTMENT and
ROOSEVELT OWENS,
Defendants-Appellees.
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Appeal from the United States District Court for the
Southern District of Mississippi
(93 CV 251)
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August 16, 1995
Before GARWOOD, HIGGINBOTHAM and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Carl Lee Stokes (Stokes), a pre-trial
detainee in the Adams County, Mississippi, jail, filed this suit
under 42 U.S.C. § 1983 in forma pauperis against Natchez,
Mississippi, Police Detective Owens, alleging that after he was
arrested July 15, 1994, Owens, in Owens' office and in the presence
*
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should not be published.
of other detectives, threatened Stokes with violence, and
approached Stokes with his (Owens') fist "balled," "because
plaintiff would not say or admit to the false charges the defendant
has placed against plaintiff." Stokes alleged he feared for his
life, and smelled alcohol on Owens.1 Without holding a hearing
under Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), the
district court, on January 26, 1995, dismissed the suit without
prejudice under 28 U.S.C. § 1915(d). Stokes appeals. We affirm.
Accepting all the allegations of the complaint as true, it
does not have an arguable basis in law. A mere verbal threat of
striking with the fists, made in the presence of other officers at
a detective's office, does not amount to a constitutional
violation. See Jackson v. Culbertson, 984 F.2d 699, 710 (5th Cir.
1993); Lynch v. Cannatella, 810 F.2d 1363, 1376 (5th Cir. 1987).
There is no allegation that Stokes was ever even touched (nor does
Stokes so assert on appeal). Indeed, in one of his filings below
Stokes alleged that Owens continued "using very violent,
threatening and profane words, until detective Dawson said no we
better not beat him (plaintiff), cause he (plaintiff) seems to be
the type that will file a lawsuit." There is no allegation that
Stokes ever made any confession or admission in response to Owens'
threats (nor does Stokes so assert on appeal).
Under the circumstances, there was no need for a Spears
hearing, particularly as the dismissal was without prejudice and
the limitations period, see James v. Sadler, 909 F.2d 834, 836 (5th
1
Arguably, the Natchez Police Department was also sued, but no
separate allegations were made as to it.
2
Cir. 1990), had not run.
On appeal Stokes raises for the first time several
allegationsSQsuch as that he was subjected to excessive bail and
not taken promptly before a magistrateSQwhich are not even remotely
suggested by the complaint. As they were not raised below, we will
not consider them.
The judgment below is
AFFIRMED.
3