United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 21, 2005
Charles R. Fulbruge III
No. 04-10299 Clerk
MICHAEL EUGENE GEIGER,
Plaintiff-Appellant,
versus
NANCY JOWERS; LINDA WRIGHT; DIXIE HOLCOMB; RICHARD DUFFY; FRANK
POHLMEIER; SUSAN SCHUMACHER; R. HEINSOHN; CYNTHIA HARRELL; RUBY
WARREN; MAIL SERVICE COORDINATOR PANEL, AND Staff Director,
Huntsville, Texas, TDCJ,
Defendants-Appellees
On Appeal from the United States District Court
for the Northern District of Texas
Before JONES, WIENER, and CLEMENT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Michael Geiger, proceeding pro se and in
forma pauperis (“IFP”), appeals the dismissal of his 42 U.S.C. §
1983 suit as frivolous and barred by the physical injury
requirement of the Prison Litigation Reform Act (“PLRA”), 42 U.S.C.
§ 1997e(e). We affirm.
I. FACTS AND PROCEEDINGS
Geiger, a Texas prisoner, sued prison officials, including
mail room, security, and grievance personnel and the Mail Service
Coordinator Panel. He alleges that, in retaliation for an earlier
lawsuit that he filed against prison officials, employees in the
mail room, acting in concert with security officials, withheld (and
subsequently lost) mail that he had ordered and paid for —— two
pornographic magazines —— and that officials charged with handling
prisoner grievances failed to remedy the situation after he filed
formal grievances.
The magistrate judge (“MJ”) concluded that Geiger had not
fully exhausted his administrative remedies for his claim of
retaliation by mail room officials; that his claim relating to a
deprivation of property was not actionable under the Due Process
Clause of the Fourteenth Amendment; that his allegation of
conspiracy among the defendants had no factual basis; and that his
claim that prison officials failed properly to investigate his
grievances was frivolous because he has no protected liberty
interest in grievance procedures. The MJ construed Geiger’s
central claim of mail tampering as a First Amendment claim for
which he sought compensatory damages for mental and emotional
distress. Accordingly, pursuant to § 1997e(e), the MJ concluded
that Geiger was barred from seeking such compensatory relief
because he did not allege physical injury. The MJ thus recommended
dismissing the suit as frivolous and barred by the physical injury
requirement of § 1997e(e).
In his timely objection to the report, Geiger claimed, inter
alia, that the MJ incorrectly characterized his suit as claiming
only mental and emotional injuries, as he was also asserting a
deprivation of property and mail tampering. The district court
2
overruled the objections, concluding that Geiger does not state a
due process claim for deprivation of property and that his mail
tampering claim, construed as a First Amendment claim, is barred by
the physical injury requirement of § 1997e(e). The district judge
adopted the MJ’s report and dismissed the complaint.
II. ANALYSIS
A district court may dismiss as frivolous the complaint of a
prisoner proceeding IFP if it lacks an arguable basis in law or
fact.1 “A complaint lacks an arguable basis in law if it is based
on an indisputably meritless legal theory, such as if the complaint
alleges the violation of a legal interest which clearly does not
exist.”2 We review the dismissal of a complaint under 28 U.S.C. §
1915(e)(2)(B)(i) as frivolous for abuse of discretion,3 and the
dismissal of a complaint under 28 U.S.C. § 1915A and § 1997e(c)(1)
de novo.4 Because the district court referred to all three
statutes in dismissing Geiger’s claims, we review the issues de
novo.5
1
See Denton v. Hernandez, 504 U.S. 25, 31–32 (1992); Harper
v. Showers, 174 F.3d 716, 718 & n.3 (1999) (5th Cir. 1999); see
also 28 U.S.C. § 1915(e)(2)(B)(i) (allowing dismissal of IFP
complaint if frivolous).
2
Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. 1998) (quoting
McCormick v. Stalder, 105 F.3d 1059, 1061 (5th Cir.1997)).
3
See Denton, 504 U.S. at 33-34; Harper, 174 F.3d at 718.
4
See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998).
5
See Velasquez v. Woods, 329 F.3d 420, 421 (5th Cir. 2003).
3
The court did not err in dismissing Geiger’s retaliation claim
as frivolous based on failure to exhaust administrative remedies.
As Geiger does not present any facts or arguments indicating error
related to this claim, he has abandoned it.6
Geiger also alleged that prison officials failed properly to
investigate his grievances and letters complaining about the
conduct of the mail room and security staff. Insofar as he seeks
relief regarding an alleged violation of his due process rights
resulting from the prison grievance procedures, the district court
did not err in dismissing his claim as frivolous. “[A] prisoner
has a liberty interest only in ‘freedom[s] from restraint . . .
impos[ing] atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.’”7 Geiger does
not have a federally protected liberty interest in having these
grievances resolved to his satisfaction. As he relies on a legally
nonexistent interest, any alleged due process violation arising
from the alleged failure to investigate his grievances is
indisputably meritless.
6
Although pro se briefs are to be liberally construed, see,
e.g., Amin v. Universal Life Ins. Co., 706 F.2d 638, 640 n.1 (5th
Cir. 1983), pro se litigants have no general immunity from the rule
that issues and arguments not briefed on appeal are abandoned. See
Oliver v. Scott, 276 F.3d 736, 741 (5th Cir. 2002); Price v.
Digital Equip. Corp., 846 F.2d 1026, 1028 (5th Cir. 1998); Yohey v.
Collins, 985 F.2d 222, 225 (5th Cir. 1993).
7
Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (quoting
Sandin v. Conner, 515 U.S. 472, 484 (1995)).
4
Neither did the district court err in dismissing as frivolous
Geiger’s § 1983 claim as it relates to a deprivation of property.
Although Geiger’s complaint on this point is murky at best, he
appears to allege that the deprivation was a result of the
negligent acts or intentional misconduct (or both) of prison
employees. Ultimately, however, it is of no consequence whether
Geiger alleges a deprivation of property by negligence or intent;
in neither instance does he state a valid § 1983 action for
deprivation of property.
In his First Amendment claim, Geiger contends that he suffered
mental anguish, emotional distress, psychological harm, and
insomnia as a result of this dispute with prison officials. To the
extent Geiger seeks compensation for injuries alleged to have
resulted from a First Amendment violation, the district court
properly determined that his claim is barred by the physical injury
requirement of § 1997e(e).8
The applicability of § 1997e(e) to prisoners’ First Amendment
claims is a question of first impression in this circuit.9
8
42 U.S.C. § 1997e(e) (“No federal civil action may be
brought by a prisoner confined to a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury.”).
9
The potential applicability has been noted by other panels.
See Clarke v. Stalder, 121 F.3d 222, 227 n.8 (5th Cir.) (suggesting
in dictum that monetary relief but not injunctive relief “might be
difficult” in light of § 1997e(e)’s physical injury requirement in
a § 1983 suit alleging a First Amendment violation), vacated for
reh’g en banc, 133 F.3d 940 (5th Cir. 1997); Oliver v. Scott, 276
F.3d 736, 747 n.20 (5th Cir. 2002) (declining to reach issue of
5
Previously, however, we have applied the PLRA’s physical injury
requirement to bar recovery of compensatory damages for mental and
emotional injuries (absent physical injury) in Eighth Amendment
cases.10
Geiger has not presented any reason for us to treat prisoners’
First Amendment claims differently from those alleging Eighth
Amendment violations. Indeed, even if there were such a reason,
the unqualified and unambiguous statutory text —— “no federal civil
action” —— precludes any such differentiation.
We agree with the majority of the other federal circuits that
have addressed this issue in holding that it is the nature of the
relief sought, and not the underlying substantive violation, that
controls: Section 1997e(e) applies to all federal civil actions in
which a prisoner alleges a constitutional violation, making
compensatory damages for mental or emotional injuries non-
whether PLRA’s physical injury requirement applies to equal
protection claims, noting that “[w]e have not considered the
application of the PLRA to constitutional violations usually
unaccompanied by physical injury, such as First Amendment
retaliation claims, privacy claims, and equal protection claims”).
10
See Siglar v. Hightower, 112 F.3d 191, 193-94 (5th Cir.
1997) (applying § 1997e(e)’s physical injury requirement to Eighth
Amendment claims and holding that § 1997e(e)’s physical injury
requirement is coextensive with Eight Amendment’s physical injury
test); Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999)
(applying § 1997e(e) to bar psychological damages absent allegation
of more than de minimis physical injury in § 1983 claim alleging
Eighth Amendment violation); Herman v. Holiday, 238 F.3d 660,
665–66 (5th Cir. 2001) (applying § 1997e(e) to bar recovery of
money damages for emotional or mental damage absent adequate
showing of physical injury in Eighth Amendment claim).
6
recoverable, absent physical injury.11 Thus, as the district court
correctly held, Geiger’s failure to allege physical injury falls
squarely under § 1997e(e)’s bar, precluding his recovery of
compensatory damages for emotional or mental injuries allegedly
suffered as a result of the purported First Amendment violation.
This does not end our inquiry, however. In addition to a
claim for compensatory relief, Geiger’s complaint requested the
court to “implement a mail safeguard” and “issue injunctive relief
pending outcome.” This court has held in the Eighth Amendment
context that the physical injury requirement of § 1997e(e) does not
apply to requests for declaratory or injunctive relief.12
11
See, e.g., Searles v. Van Bebber, 251 F.3d 869, 876 (10th
Cir. 2001) (explaining that the plain language of § 1997e(e) “does
not permit alteration of its clear damages restrictions on the
basis of the underlying rights being asserted”); Davis v. District
of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998) (reasoning that
Ҥ 1997e(e) precludes claims for emotional injury without any prior
physical injury, regardless of the statutory or constitutional
basis of the legal wrong”); see also Royal v. Kautzky, 375 F.3d
720, 723 (8th Cir. 2004) (reading § 1997e(e) “as limiting recovery
for mental or emotional injury in all federal civil actions brought
by prisoners,” and rejecting argument that First Amendment claims
are exempt from the statutory limitation on recovery); Thompson v.
Carter, 284 F.3d 411, 416 (2d Cir. 2002) (“[W]e conclude that
Section 1997e(e) applies to all federal civil actions including
claims alleging constitutional violations.”); Allah v. Al-Hafeez,
226 F.3d 247, 250 (3d Cir. 2000) (rejecting argument that First
Amendment claim for compensatory damages absent physical injury was
outside the scope of the PLRA, because “[t]he plain language of §
1997e(e) makes no distinction between the various claims
encompassed within the phrase ‘federal civil action’ to which the
section applies”); but see Cannell v. Lightner, 143 F.3d 1210, 1213
(9th Cir. 1998) (stating that Ҥ 1997e(e) does not apply to First
Amendment Claims regardless of the form of relief sought”)
(footnote omitted).
12
See, e.g., Herman, 238 F.3d at 665.
7
Nevertheless, a more basic bar than § 1997e(e) stands in the way of
equitable relief in this case; to the extent Geiger seeks
injunctive relief for a First Amendment violation, Geiger’s request
is barred by the standing limitation described in City of Los
Angeles v. Lyons.13 The district court lacks jurisdiction to
entertain Geiger’s claim for injunctive relief because Geiger has
not shown or even alleged a likelihood of future harm. Geiger’s
allegations that defendants withheld his magazines on a single
occasion does nothing to establish a real and immediate threat that
defendants would violate his First Amendment rights in the future.14
III. CONCLUSION
For the foregoing reasons, the district court’s judgment of
dismissal is
AFFIRMED.
13
461 U.S. 95 (1983).
14
Cf. id. at 105. To the extent that Geiger’s brief can be
read as challenging as unconstitutional what appears, from the
limited record available, to be a post-dismissal policy implemented
by the prison banning all sexually explicit publications, this
argument is not properly before the court. See, e.g., Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999)
(explaining that arguments not asserted in district court cannot be
raised for the first time on appeal).
8