IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 10, 2009
No. 08-40685 Charles R. Fulbruge III
Clerk
JAMES EARL BREWSTER,
Plaintiff - Appellant
v.
DOUGLAS DRETKE,
Defendant - Appellee
Appeal from the United States District Court
for the Southern District of Texas
Before CLEMENT, PRADO, and ELROD, Circuit Judges.
PER CURIAM:
James Earl Brewster (“Brewster”), a Texas inmate proceeding pro se and
in forma pauperis, appeals the district court’s dismissal of his § 1983 action. For
the reasons stated below, we affirm.
FACTS AND PROCEEDINGS
In his complaint, Brewster alleges that, during a shake-down of his cell,
prison officials verbally abused him and confiscated his spare glass eye, a bottle
of wite-out, and a Georgetown Law Journal volume borrowed from a fellow
inmate. The district judge asked Brewster to submit a more definite statement
of his allegations, and he complied. The district court then dismissed Brewster’s
complaint with prejudice as legally frivolous, pursuant to 28 U.S.C.
No. 08-40685
§ 1915(e)(2)(B)(i). The district court’s judgment did not address Brewster’s
Eighth Amendment claim, however, and this court granted Brewster’s
application to proceed in forma pauperis on appeal.
STANDARD OF REVIEW
We review a district court’s dismissal of an in forma pauperis complaint
as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion.
Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A claim may be
dismissed as frivolous if it does not have an arguable basis in fact or law.
Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir. 1998).
DISCUSSION
Brewster challenges both the procedure through which the district court
dismissed his claims and the merits of the district court’s legal analysis. We
dispense with Brewster’s procedural arguments first. Brewster contends that
the district judge improperly dismissed his claims before an answer was filed
and without conducting a Spears hearing or allowing him to amend his
complaint. He further objects that the district court failed to “provide appellant
with a statement explaining the dismissal that facilitates intelligent appella[te]
review,” and argues that the district court improperly imposed a heightened
pleading standard by requiring him to submit a more definite statement. None
of these arguments has merit.
The district court may dismiss an in forma pauperis proceeding “before
service of process or before the filing of the answer” as long as certain safeguards
are met. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990). In reviewing such a
dismissal, we consider, among other things, “whether the court has provided a
statement explaining the dismissal that facilitates intelligent appellate review.”
Denton v. Hernandez, 504 U.S. 25, 34 (1992) (quotation omitted). This requires
the court to examine whether an inmate’s “insufficient factual allegations might
be remedied by more specific pleading.” Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.
2
No. 08-40685
1994). Traditionally, the “principal vehicles . . . for remedying inadequacy in
prisoner pleadings are the Spears hearing and a questionnaire to bring into
focus the factual and legal bases of prisoners’ claims.” Id. (quotation omitted).
The district court used a questionnaire instead of a Spears hearing. Had the
district court conducted a hearing, it may have addressed Brewster’s Eighth
Amendment claim. Any error in failing to hold a hearing, however, was
harmless because Brewster’s pleadings fail to state a claim under the Eighth
Amendment, as discussed below, and because Brewster fails to show how the
district court’s decision prevented him from adequately presenting his other
claims. Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) (“A district
court should be able to dismiss as frivolous a significant number of prisoner suits
on the complaint alone or the complaint together with the Watson
questionnaire.”).
Generally, as Brewster argues, a pro se litigant should be offered an
opportunity to amend his complaint before it is dismissed. Bazrowx v. Scott, 136
F.3d 1053, 1054 (5th Cir. 1998) (per curiam) (reviewing the district court’s
dismissal under 42 U.S.C. § 1997(e)). Granting leave to amend is not required,
however, if the plaintiff has already pleaded his “best case.” Id. Brewster gives
no indication that he did not plead his best case in his complaint and more
definite statement. He does not state any material facts he would have included
in an amended complaint. See Shope v. Texas Dep’t of Criminal Justice, 283 F.
App’x 225, 226 (5th Cir. 2008) (unpublished) (“Shope does not allege what facts
he would include in an amended complaint. Therefore, Shope has not shown
that the district court abused its discretion in dismissing his complaint.” (citing
Ashe v. Corley, 992 F.2d 540, 542 (5th Cir. 1993)); Goldsmith v. Hood County
Jail, 299 F. App’x 422, 423 (5th Cir. 2008) (unpublished) (affirming district
court’s dismissal of pro se complaint when litigant failed to “explain what facts
he would have added or how he could have overcome the deficiencies found by
3
No. 08-40685
the district court if he had been granted an opportunity to amend”).1 Brewster
has therefore failed to show that the district court abused its discretion by
dismissing his complaint without granting him leave to amend.
Brewster’s argument that the district court imposed a heightened pleading
standard by requiring him to complete a questionnaire is also misplaced. This
circuit has long held that district courts may require a pro se litigant to complete
a post-complaint questionnaire. See Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319, 324
(1989); Watson v. Ault, 525 F.2d 886 (5th Cir. 1976). Indeed, the en banc court
expressly affirmed this practice in an opinion that considered the proper
pleading standard for pro se litigants in civil rights actions. See Schultea v.
Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (en banc). The Schultea court did not
perceive a conflict between this practice and notice pleading. Brewster has given
no persuasive reason to find one now.
Turning now to the district court’s legal analysis, we find that the court
correctly dismissed each of Brewster’s claims.2 Brewster’s appellate brief and
pleadings below mainly argue that prison officials violated his right to due
process when they confiscated his property without providing him with a
confiscation form, as required by prison regulations. “[A] prison official’s failure
to follow the prison’s own policies, procedures or regulations does not constitute
a violation of due process, if constitutional minima are nevertheless met.” Myers
v. Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (citations omitted); see also
1
Although these unpublished cases are not precedential, we consider their analyses to
be persuasive.
2
We restrict our analysis to Brewster’s due process, right to court access, and Eighth
Amendment claims because these are the only claims he briefed. Brewster also makes passing
reference to claims under the Fourth Amendment and the Texas Constitution. He offers no
argument in support of these claims, however, and has therefore waived them. See Yohey v.
Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Price v. Digital Equip. Corp., 846 F.2d 1026,
1027-28 (5th Cir. 1988).
4
No. 08-40685
Murphy v. Collins, 26 F.3d 541, 543 (5th Cir. 1994). As the district court
correctly held, constitutional due process is satisfied here because the Texas tort
of conversion provides Brewster with an adequate post-deprivation remedy.
Murphy, 26 F.3d at 543.
The district court was also right to dismiss Brewster’s claim that he was
denied meaningful access to the courts when officials confiscated the law journal
and wite-out. An inmate alleging the denial of his right of access to the courts
must demonstrate a relevant, actual injury stemming from the defendant’s
unconstitutional conduct. See Lewis v. Casey, 518 U.S. 343, 351 (1996). This
requires the inmate to allege that his ability to pursue a “nonfrivolous,”
“arguable” legal claim was hindered. See Christopher v. Harbury, 536 U.S. 403,
415 (2002) (quotation omitted). The inmate must describe the underlying claim
well enough to show that its “arguable nature . . . is more than hope.” Id. at 416
(2002) (internal quotation marks omitted). Brewster wrote in his more definite
statement that his research on several pending lawsuits was delayed by the law
journal’s confiscation and that his ability to draft pleadings was hindered by the
loss of the wite-out. On appeal, Brewster argues that “he was attempting to
formulate an appeal of his criminal conviction” when the law journal was
confiscated. At no point in any of his pleadings does Brewster identify any issue
that he would have brought in his criminal appeal or other suit if the law journal
had not been taken from him. This omission is fatal to his claim. See Id.
Finally, Brewster argues that his Eighth Amendment right to be free from
cruel and unusual punishment was violated when prison officials confiscated his
spare glass eye. Courts in this circuit and others have found Eighth Amendment
violations when prison officials deprive an inmate of a needed medical prosthesis
or other device. See, e.g., Johnson v. Hardin County, 908 F.2d 1280, 1283-84
(6th Cir. 1990) (defendant’s refusal to provide inmate with crutches supported
jury’s finding of Eighth Amendment violation); Newman v. Alabama, 503 F.2d
5
No. 08-40685
1320, 1331-32 (5th Cir. 1974) (unavailability of eyeglasses and prosthetic
devices, inter alia, in state penal system warranted findings of constitutional
inadequacy under either the Eighth Amendment or the Due Process Clause of
the Fourteenth Amendment). The district court did not address Brewster’s
Eighth Amendment argument, but any error was harmless because Brewster’s
allegations fail “‘to state a claim to relief that is plausible on its face.’” Ashcroft
v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).3
Prison officials violate the Eighth Amendment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs constituting an
unnecessary and wanton infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297
(1991). Deliberate indifference is an “extremely high” standard to meet. Gobert
v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006) (quotation omitted). A prison
official shows deliberate indifference if “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.” Farmer v. Brennan, 511 U.S. 825,
837 (1994). Such a showing requires the inmate to allege that prison officials
“refused to treat him, ignored his complaints, intentionally treated him
incorrectly, or engaged in any similar conduct that would clearly evince a
3
28 U.S.C. 1915(e)(2)(B)(ii) permits this court to dismiss an in forma pauperis appeal
sua sponte when the appellant’s complaint fails to state a claim. See Marks v. Solcum, 98 F.3d
494, 496 (9th Cir. 1996) (per curiam) (sua sponte determining that prisoner’s complaint failed
to state a claim, and dismissing appeal under § 1915(e)(2)); see also Lopez v. Smith, 203 F.3d
1122, 1136 n.3 (9th Cir. 2000) (noting the appellate court’s power to dismiss a complaint for
failure to state a claim sua sponte on appeal pursuant to § 1915(e)(2)); Peterson v. Peshoff, 2000
WL 729077, at *1 (5th Cir. May 9, 2000) (unpublished table opinion) (“Although the district
court did not address his claim of retaliation with respect to filing grievances, Peterson’s
allegations that he was threatened for filing grievances do not state a claim.”). This is
consistent with the court’s practice of affirming the district court on alternative grounds when
those grounds are supported by the record. See Sojourner T v. Edwards, 974 F.2d 27, 30 (5th
Cir. 1992).
6
No. 08-40685
wanton disregard for any serious medical needs.” Domino v. Tex. Dep’t of
Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001) (quoting Johnson v. Treen,
759 F.2d 1236, 1238 (5th Cir. 1985)). Brewster alleges that officials confiscated
his spare eye, but this allegation, without more, does not indicate that prison
officials were aware that their actions exposed Brewster to a substantial health
risk, or that the officials consciously disregarded that risk. See Farmer, 511 U.S.
at 837. Importantly, Brewster does not allege any facts indicating that prison
officials had reason to know that Brewster’s spare glass eye was medically
necessary, even assuming that it was.4 Brewster, for example, does not allege
that he complained to prison officials about adverse medical effects resulting
from the confiscation and that these complaints were ignored. Rather, Brewster
admits that he currently has the use of a glass eye and that the confiscated eye
was “extra.” While it is possible that prison officials failed to exercise reasonable
care in confiscating Brewster’s extra prosthesis, this circuit’s law is clear that
negligence does not amount to deliberate indifference. Varnado v. Lynaugh, 920
F.2d 320, 321 (5th Cir. 1991). Since the facts alleged in Brewster’s complaint
and more definite statement “do not permit the court to infer more than the
mere possibility of misconduct,” he has failed to state an Eighth Amendment
claim. Iqbal, 129 S.Ct. at 1950.
CONCLUSION
For the foregoing reasons, the district court’s judgment is AFFIRMED.
Since Brewster’s complaint fails to state a claim upon which relief may be
granted, he has accumulated his third “strike” under 28 U.S.C. § 1915(g).
4
We note that Brewster does not argue that this case presents “exceptional
circumstances” wherein “a prison official’s knowledge of a substantial risk of harm may be
inferred by the obviousness of the substantial risk.” Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994) (citing Farmer, 511 U.S. at 842 & 843 n.8). Nor does Brewster’s allegation that
prison officials confiscated his spare prosthesis involve a risk as severe as those in this circuit’s
cases finding such exceptional circumstances. See, e.g., Bias v. Woods, 288 F. App’x 158, 162-
63 (5th Cir. 2008) (unpublished); Gates v. Cook, 376 F.3d 323, 343 (5th Cir. 2004).
7
No. 08-40685
Except for cases involving an imminent danger of serious physical injury,
Brewster is BARRED under § 1915(g) from proceeding further under § 1915. See
Adepegba v. Hammons, 103 F.3d 383, 386-88 (5th Cir. 1996). He may proceed
in subsequent civil cases under the fee provisions of 28 U.S.C. §§ 1911-14.
8