UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-11032
EDWARD JAMES CALHOUN,
Plaintiff-Appellant,
VERSUS
CLYDE HARGROVE; MARK ATKINS,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Texas
November 15, 2002
Before HIGGINBOTHAM, DUHÈ, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
Appellant, Edward James Calhoun, a Texas state prison inmate,
filed suit pro se under 42 U.S.C. § 1983 against two prison
officials for violations of his Eighth and Fourteenth Amendment
rights. After Calhoun failed to respond to the Appellees’ Motion
for Summary Judgment, the magistrate judge construed the motion as
one for dismissal pursuant to Fed. R. Civ. P. 12(b)(6), and
dismissed Calhoun’s claims for failure to state a claim. Calhoun
now appeals.
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BACKGROUND
On October 28, 1999, Appellant Edward James Calhoun, Jr.,
Texas state prisoner, filed a § 1983 complaint against Captain
Clyde Hargrove (Captain of Security), for abuse, mistreatment,
denial of due process, and cruelty, and Lieutenant Mark Atkins
(Lieutenant of Security), for abuse, mistreatment, and failure to
report or stop the former’s abuse. Calhoun alleged that he was
assigned to work in the prison’s administration building as a
support services inmate porter. His duties included mopping,
sweeping, and waxing floors, emptying trash, cleaning windows,
dusting offices, cleaning restrooms, moving furniture, and other
janitorial duties. He alleged that he suffered from hypertension,
asthma, epileptic seizures, and glaucoma and that he had injured
his left knee in a fall and had suffered a head injury. Because of
his medical restrictions, he claims he was limited to a four-hour
work schedule. His restrictions included limitations on walking,
standing, and lifting. He alleged that the Appellees were aware or
should have been aware of these restrictions. Calhoun alleged that
while he was working under Captain Hargrove, Hargrove called him
names like “crack smoker,” “thief,” and “whore.”
Calhoun alleged that on numerous occasions, Hargrove called
him and his co-worker, inmate Ronald Paul Williams, into his office
and ordered them to pick up sunflower seeds and the shells that he
had spit on the floor. Then, before they could leave the room,
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Hargrove would spit another handful of seeds on the floor and would
order them to pick them up. Calhoun alleged that despite his
reminding Hargrove of his work restrictions, Hargrove routinely
made him work 10, 12, and 14-hour days. Calhoun alleged that if
Hargrove was not around, Lieutenant Atkins would allow him to
return to his cell after he completed his tasks. However, if
Hargrove was there, Atkins would send him to Hargrove, who would
make him work more. Calhoun alleged that Atkins knew that Hargrove
was working him beyond his physical abilities and medical
restrictions but failed to intervene or report the violations.
Calhoun alleged that one day after he and Williams had worked
for 10 hours, Hargrove allowed them to have lunch only after they
got on their knees and begged for it. Calhoun complained that
Atkins did not report this incident. He alleged that he spent 12
hours stripping and waxing the floors in June 1999, because
Hargrove refused to call out the inmate who usually helped with the
floors. Calhoun asserted that after he reported the abuses,
someone informed Hargrove that he had done so. Consequently, when
he returned to work, Hargrove called him into his office and
threatened to make his life miserable. Calhoun alleged that on
June 24, 1999, Hargrove then went into his porter’s supply closet
and pulled all the towels and cleaning rags from the shelves and
threw them on the floor. Calhoun refolded the towels and rags, and
Hargrove again threw them onto the floor. Calhoun refolded them
again and Hargrove again threw them onto the floor. When Calhoun
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asked if he could leave because he had been working for eight
hours, Hargrove said no. Around midnight, Hargrove called Calhoun
into his office and ordered him to pick up sunflower seeds he had
spit on the floor. After Calhoun finished picking them up,
Hargrove spit more seeds on the floor and ordered Calhoun to pick
them up. Hargrove allegedly repeated this conduct twice more that
night. After picking the seeds up for the fourth time, Calhoun
alleged that he almost passed out because of high blood pressure.
Calhoun alleged that his blood pressure was near stroke level, but,
that after one hour of supervision at the infirmary, it had
stabilized. He alleged that on August 6, 1999, he was relieved of
all job duties.
Calhoun then filed the present suit seeking injunctive relief
and compensatory and punitive damages. The Appellees filed an
answer, and all of the parties consented to proceed before a
magistrate judge. The Appellees then filed a motion for summary
judgment, but because the motion for summary judgment did not
contain any evidentiary support, such as affidavits or prison
records, the magistrate judge construed it as a motion to dismiss
for failure to state a claim upon which relief could be granted
pursuant to Fed. R. Civ. P. 12(b)(6) and granted it. Judgment was
entered on August 1, 2001.
On August 8, 2001, Calhoun filed a motion for new trial and a
notice of appeal. Relying on Calhoun’s assertion in his motion for
new trial that he was never served with the motion for summary
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judgment and on the defendants’ failure to file a response, the
magistrate judge granted Calhoun’s motion and vacated its
memorandum opinion and judgment. The Appellees filed a motion for
reconsideration and motion to strike pleadings, alleging that they
were not served with the motion for new trial. Attached to their
motion were documents establishing that Calhoun was served with
their motion for summary judgment. On September 21, 2001, the
magistrate judge granted the defendants’ motion and (1) vacated its
order granting Calhoun’s motion for new trial, (2) reinstated its
memorandum opinion and judgment, and (3) ordered Calhoun to show
cause why sanctions should not be imposed for making a false
representation to the court. Subsequently, on September 27, 2001,
Calhoun filed a response to the defendants’ motion for
reconsideration and to strike pleadings alleging, inter alia, that
he did not receive a copy of their motion for summary judgment. On
October 2, 2001, Calhoun filed a response to the court’s order
reinstating its judgment. On October 30, 2001, the magistrate
judge entered an order construing Calhoun’s response to its order
as a motion for a new trial pursuant to Fed. R. Civ. P. 59 and
denied it. Calhoun timely filed his notice of appeal from the
district court’s order.1
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Though the exact procedural history of this case is
unorthodox, the only issue of concern to this panel is whether the
original complaint should have been dismissed for failure to state
a claim.
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DISCUSSION
This Court reviews de novo a district court’s granting a
motion to dismiss for failure to state a claim. Blackburn v. City
of Marshall, 42 F.3d 925, 931 (5th Cir. 1995). In considering a
motion to dismiss for failure to state a claim under Rule 12(b)(6),
the court must accept all well-pleaded facts as true and view them
in the light most favorable to the plaintiff. McCartney v. First
City Bank, 970 F.2d 45, 47 (5th Cir. 1992). “It is
well-established that ‘pro se complaints are held to less stringent
standards than formal pleadings drafted by lawyers.’” Taylor v.
Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting
Miller v. Stanmore, 636 F.2d 986, 988 (5th Cir. 1981)).
A claim for relief under § 1983 must allege the deprivation of
a right secured by the Constitution or the laws of the United
States by a defendant acting under color of state law. Wong v.
Stripling, 881 F.2d 200, 202 (5th Cir. 1989). Furthermore, under
42 U.S.C. § 1997e(e), “[n]o federal civil action may be brought by
a prisoner confined in a jail, prison, or other correctional
facility, for mental or emotional injury suffered while in custody
without a prior showing of physical injury.”
Calhoun essentially alleges that he was verbally abused, that
he was once forced to beg for a meal (which he eventually
received), and that he was forced to work beyond the medical
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limitations set for him causing him to have dangerously elevated
blood pressure. Neither the verbal abuse, nor the begging for the
meal allege a physical injury to Calhoun and, though troubling, do
not overcome § 1997e(e). Furthermore, to establish an Eighth
Amendment claim, Calhoun must demonstrate, inter alia, an objective
component of conditions so serious as to deprive him of the minimal
measure of life’s necessities. Berry v. Brady, 192 F.3d 504, 507
(5th Cir. 1999). Therefore, Calhoun’s claims of verbal abuse are
not actionable under § 1983, see Siglar v. Hightower, 112 F.3d 191,
193-94 (5th Cir. 1997), and neither are his claims that he was
forced to once beg for food that he eventually received. See
Berry, 192 F.3d at 507-08 (dismissing inmate’s claim that he was
denied admittance to the dining hall for an evening meal on eight
occasions over a seven-month period).
Whether Calhoun’s claim that he was forced to work beyond his
medical limitations which, in turn, led to his unusually high blood
pressure alleges a physical injury is less clear. This inquiry is
also of importance in analyzing Calhoun’s Eighth Amendment claims.
The Supreme Court has held that the treatment a prisoner receives
in prison and the conditions under which he is confined are subject
to scrutiny under the Eighth Amendment. Farmer v. Brennan, 511
U.S. 825, 832 (1994). “[A] prison official may be held liable
under the Eighth Amendment for denying humane conditions of
confinement only if he knows that inmates face a substantial risk
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of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Id. at 847. In other words, the
prison official must have a sufficiently culpable state of mind,
which is one of “deliberate indifference” to inmate health or
safety. Id. at 834. To find that an official is deliberately
indifferent, it must be proven that “the official knows of and
disregards an excessive risk to inmate health or safety; the
official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837.
Though the magistrate judge analyzed Calhoun’s claim as an
excessive force claim and found the injury to be de minimus and not
actionable, we believe that Calhoun’s complaint, at the very least,
also alleges deliberate indifference on the part of Hargrove.
Calhoun alleged that he had a medical condition, had a set limit of
four hours of maximum work time, and that Hargrove knew of this
limit and his medical condition but made him work in excess of
these time limits. Calhoun also alleged that this ultimately led
to his elevated blood pressure. Therefore, Calhoun has met the
requirements needed to overcome a 12(b)(6) motion for failure to
state a claim. As for alleging a physical injury under § 1997e(e),
Calhoun has alleged that his blood pressure was at near-stroke
levels. The magistrate failed, however, to hold any sort of
hearing, evidentiary or otherwise, into the level of harm resulting
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from the elevated blood pressure. High blood pressure, or
hypertension, can have severe negative impacts on a person’s heart,
arteries, brain, eyes and kidneys, and a systolic reading (the
first or top number in a blood pressure reading) of over 210 is
considered severely elevated and may be a medical emergency that
requires immediate attention. American Medical Association,
Essential Guide to Hypertension 33-45, 52 (1998). Calhoun had a
reading of 220/195 at one point just after the incident and was not
permitted to leave the infirmary until his pressure was 165/99.
This caused Calhoun to allegedly be light-headed and be near
stroke-level. Based on these allegations, the magistrate judge
should have inquired further into the severity of the damage done
to Calhoun to determine if any actual injury did occur to him as a
result of this incident.
Calhoun also makes claims under the Fourteenth Amendment
claiming that the Appellees denied him due process by failing to
adhere to his medical and work restrictions. This is really a
restatement of his Eighth Amendment claim, however, and claims that
are covered by such specific constitutional provisions must be
analyzed under the standard appropriate to that specific provision
and not under the rubric of substantive due process. Graham v.
Connor, 490 U.S. 386, 395 (1989). As for Calhoun’s claims against
officer Atkins, except for a conclusional statement in his reply
brief, Calhoun has not re-urged his argument that Atkins is liable
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for his failure to intervene or report Hargrove’s actions, and as
such, those claims are waived. See Yohey v. Collins, 985 F.2d 222,
225 (5th Cir. 1993) (holding claims raised for first time in reply
brief to be waived).
CONCLUSION
The level of abuse alleged by Calhoun, which, if true, can
only be described as malicious hazing on the part of Hargrove, is
troubling. It is clear that Calhoun has at least alleged a
deprivation of his Eighth Amendment right to be free from cruel and
unusual punishment because he has alleged that Hargrove knew of his
physical and medical limitations and forced him to work in excess
of those limits, thus endangering Calhoun’s life. However,
Calhoun’s suit is not actionable unless there exists a showing of
physical injury. 42 U.S.C. § 1997e(e). Having carefully reviewed
the parties’ respective briefs and the record, we hold that the
magistrate judge erred in granting the 12(b)(6) motion. We
therefore REVERSE IN PART and REMAND so that a hearing may be
conducted to determine the level of injury sustained by Calhoun.
It may be that no harm resulted from Hargrove’s alleged abuses, but
for now, Calhoun has sufficiently pled his complaint to overcome a
12(b)(6) motion.
REVERSED IN PART and REMANDED.
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