IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-20285
Summary Calendar
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DON KELLY GRAVES, JR.,
Plaintiff-Appellant,
VERSUS
JOHN DOE, Lt., et al.,
Defendants-Appellees.
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Appeal from the United States District Court
for the Southern District of Texas
(CA-H-95-226)
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January 16, 1996
Before KING, SMITH, and BENAVIDES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Prison inmate Kelly Graves appeals the dismissal of his pro
se, in forma pauperis (IFP) civil rights action under 42 U.S.C.
§ 1983 as frivolous. A frivolous IFP complaint can be dismissed
sua sponte. 28 U.S.C. § 1915(d). A complaint is frivolous if it
lacks an arguable basis in law or fact. Denton v. Hernandez, 504
U.S. 24, 32-33 (1992). We review the dismissal for abuse of
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published except under the limited circumstances set
forth in 5TH CIR. R. 47.5.4.
discretion. Ancar v. Sara Plasma, Inc., 964 F.2d 465, 468 (5th
Cir. 1992).
Graves’s complaint alleges that five unnamed guards subjected
him to cruel and unusual punishment. Specifically, he claims that
the guards’ delay in providing him medical attention after he
suffered an involuntary bowel movement demonstrated deliberate
indifference to his serious medical needs. Graves’s other
complaint is that the guards subjected him to cruel and unusual
punishment when they ridiculed him in front of the other prisoners
for his medical condition.1
The district court correctly dismissed Graves’s complaint for
denial of medical care. The guards’ conduct did not amount to
deliberate indifference to Graves’s serious medical needs. At
most, their conduct can be characterized as a delay that did not
affect his medical condition. As the district court explained,
To state a claim under 42 U.S.C. § 1983 for the
denial of medical care, the plaintiff must at least show
that he has suffered deliberate indifference to his
serious medical needs. Estelle v. Gamble, 429 U.S.C. 97
(1976); Johnson v. Treen, 759 F.2d 1236, 1238 (5th Cir.
1985). The prison official must know of and disregard an
excessive risk to inmate health or safety, meaning that
he must be aware of facts from which an inference could
be drawn and he must draw the inference. Reeves v.
Collins, 27 F.3d 174, 176 (5th Cir. 1994).
Graves’s allegations are that shortly after he
arrived at the Holliday Unit, he was taken to the
hospital to explain his medical condition. The incident
he complains of occurred on his first morning at the
Unit. After he had soiled himself, Graves was returned
to the hospital as soon as he was cleaned up. Graves’s
deprivation of medical care complaint is essentially that
the guards did not immediately take him to a bathroom
1
Graves was born without a rectum and sphincter muscle and, as a
result, he is required to “self-catheterize” four times a day. He also
suffers from involuntary bowel movements.
during the inmates’ breakfast. Assuming that Grave’s
description of the events is correct, it does not state
a claim for wanton and deliberate punishment under the
Eight Amendment. See Estelle, 429 U.S. at 106 (to state
a cognizable claim, a prisoner must allege acts of
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs).
The district court correctly dismissed Graves’s other
complaint that the guards ridiculed him and invited the inmates to
do so as well. The court found that Graves suffered no harm other
than the verbal harassment itself, and dismissed the complaint
because mere allegations of verbal abuse do not state a claim under
§ 1983. See Lawson v. Stevens, No. 94-60852 (5th Cir. June 30,
1995) (unpublished); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th
Cir. 1993); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert.
denied, 464 U.S. 998 (1983).
Although “it is an open question in this circuit whether the
Eight Amendment protects individuals against psychological injury,”
Lawson, at 2; Smith v. Aldingers, 999 F.2d 109, 110 (5th Cir. 1993)
(remanding for consideration of whether, in the absence of any
physical contact or injury, psychological harm resulting from an
assault at knifepoint can violate the Eight Amendment), de minimis
psychological injury is not sufficient to state a claim under
§ 1983. Stitt v. Collins, No. 94-40910 (5th Cir. Aug. 9, 1995)
(unpublished) (denying relief when the alleged injury is a feeling
of intimidation).
We agree with the district court that Graves has simply
alleged verbal harassment. Any injury he suffered can be de-
scribed, at most, as de minimis psychological injury. Graves’s
self-serving statements, i.e., that he could not believe that
“grown men in positions of authority could act that way” and that
the guards’ alleged harassment reminded him of teasing he suffered
as a child, are insufficient to demonstrate that he suffered any
cognizable injury. Like the plaintiff in Stitt, Graves can
demonstrate only that he felt some vague sense of emotional letdown
after the incident. This does not rise to the level of the
knifepoint assault at issue in Smith. We conclude that Graves did
not state a claim under the Eighth Amendment.
AFFIRMED.