Harper v. Showers

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 97-60822

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ROY RANDALL HARPER,

Plaintiff-Appellant,

VERSUS

KIM SHOWERS; ED HARGETT; RAYMOND ROBERTS; BARRY PARKER;

ROBERT ARMSTRONG; RAYFORD JONES; BOBBY BUTLER; STEVE W

PUCKETT, Commissioner, Mississippi Department of

Corrections; EARL JACKSON, Case Manager Supervisor; ANN L

LEE, Director Classification;

Defendants-Appellees.

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Appeal from the United States District Court

for the Northern District of Mississippi

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May 24, 1999

Before SMITH, DeMOSS, and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Roy Randall Harper appeals the attempt after which he was placed in a front

dismissal of his 42 U.S.C. § 1983 suit as cell where he could be observed twenty-four

frivolous. Because the district court properly hours a day, Major Kim Showers and other

dismissed part of the action but failed prison officials have housed him in a manner

adequately to address a claim that arguably that subjects him to cruel and unusual

states a constitutional violation, we affirm in punishment. He asserts that he is moved to a

part, reverse in part, and remand for further different cell at least once per week, with a

proceedings. thorough search, i.e., a shakedown, of his cell

each time he is moved. He continually is

I. placed in cells next to psychiatric patients who

Harper alleges that, since an escape scream, beat on metal toilets, short out the

power, flood the cells, throw feces, and light laws.1 He seeks a declaratory judgment,

fires, resulting in his loss of sleep for days at a recognizing the constitutional violations, and

time. He often is moved into filthy, sometimes injunctive relief, enjoining further harassment.

feces-smeared, cells that formerly housed He also seeks compensatory damages for his

psychiatric patients. These malicious and emotional distress and mental anguish.

sadistic acts have deprived him of cleanliness,

sleep, and peace of mind. The magistrate judge conducted a

hearing pursuant to Spears v. McCotter,

Harper claims that only a few of the 766 F.2d 179 (5th Cir. 1985), during which

inmates housed in his secure unit SSa number Harper primarily complained about the manner

of whom are classified as escape risksSShave in which his classification status is

been placed on Showers's weekly move list. determined.2 The magistrate judge determined

He furt her avers that no logical security that Harper failed to a state a claim that

justification or other purpose supports these implicated any constitutional protections.

frequent moves in such a secure unit, where Characterizing the claims as no more than

at-risk prisoners are kept under around-the- Harper's disagreement with his classification as

clock observation. He asserts that the change an “extreme security risk,” a reasonable

in his classification status onto a move list classification in light of Harper's successful and

without employing legitimate disciplinary or attempted escapes and repeated possession of

classification procedures violates due process. unauthorized items, the magistrate judge

recommended that the complaint be dismissed

Harper placed some defendants on as frivolous because it lacked an arguable basis

notice of his complaints by following the in law. He did not specifically address the

administrative remedy procedures; others are Eighth Amendment claim. The district court

on notice by virtue of their official positions. adopted the report and recommendation and

He further claims that it was within each dismissed the complaint as frivolous.

defendants' individual and official capacities to

intercede to stop the harassing procedures. III.

Instead, all have concurred in them. Harper A district court may dismiss as

further alleges that the failure of supervisory frivolous the complaint of a prisoner

personnel to take action against Showers proceeding in forma pauperis if it lacks an

through the administrative remedy procedures arguable basis in law or fact. See Denton v.

Harper pursued demonstrates deliberate

indifference, contributing to the constitutional

violations. 1

Harper initially pursued the action with a

co-plaintiff, H. Trent Eason. Although Eason has

II. signed what is entitled the “Appellants' Brief,” he did

Harper sued a number of Mississippi not file a notice of appeal, so he is not an appellant,

Department of Corrections officials and and we do not consider his arguments.

employees, alleging that they had subjected 2

Neither the magistrate judge nor Harper

him to cruel and unusual punishment and that

raised the Eighth Amendment issues. Harper did

the classification system they employed denied request to read his complaint aloud to ensure that he

him due process and equal protection of the did not forget anything. The magistrate judge denied

the request.

2

Hernandez, 504 U.S. 25, 31-32 (1992); 882, 889 (5th Cir. 1998).4 Indeed, “absent

McDonald v. Johnson, 139 F.3d 1056, 1060 exigent circumstances, administrative

(5th Cir. 1998); see also 28 U.S.C. segregation as such, being an incident to the

§ 1915(e)(2)(B)(i) (allowing dismissal of in ordinary life of a prisoner, will never be a

forma pauperis action if frivolous). “A ground for a constitutional claim because it

complaint lacks an arguable basis in law if it is simply does not constitute a deprivation of a

based on an indisputably meritless legal theory, constitutionally cognizable liberty interest.”

such as if the complaint alleges the violation of Martin v. Scott, 156 F.3d 578, 580 (5th Cir.

a legal interest which clearly does not exist.” 1998) (quotation omitted). Because Harper

Davis v. Scott, 157 F.3d 1003, 1005 (5th Cir. relies on a legally nonexistent interest, any

1998) (quoting McCormick v. Stalder, 105 alleged due process or other constitutional

F.3d 1059, 1061 (5th Cir. 1997)). We review violation arising from his classification is

the dismissal of a frivolous complaint for abuse indisputably meritless.

of discretion. See Denton, 504 U.S. at 33-34;

Davis, 159 F.3d at 1005.3 B.

The district court did not address the

A. Eighth Amendment claim; rather, it simply

The court did not abuse its discretion dismissed the complaint, including that claim,

in dismissing Harper's claim as it relates to his as frivolous. We can affirm on any basis

classification. “Inmates have no protectable supported by the record. See Davis, 157 F.3d

property or liberty interest in custodial at 1005.

classifications.” Whitley v. Hunt, 158 F.3d

We affirm the dismissal of Harper's

complaint as frivolous insofar as he seeks

damages for his emotional suffering that

resulted from the alleged cruel and unusual

punishment. The Prison Litigation Reform

3

We recently reviewed a dismissal under Act requires a physical injury before a prisoner

both § 1915(e)(2)(B)(i) and (ii) de novo. See Moore v. can recover for psychological damages.5

Carwell, 168 F.3d 234, 236 (5th Cir. 1999). But the

Relying on our Eight h Amendment

de novo standard applies only to dismissals for a

failure to state a claim on which relief may be granted jurisprudence, we have determined that the

pursuant to § 1915(e)(2)(B)(ii). See Black v. Warren, “physical injury” required by § 1997e(e) “must

134 F.3d 732, 734 (5th Cir. 1998) (applying de novo

review to § 1915(e)(2)(B)(ii) and abuse of discretion

4

review to § 1915(e)(2)(B)(i)). Here, the court See also Sandin v. Conner, 515 U.S. 472,

dismissed the action as frivolous, which places the 485 (1995) (finding no liberty interest in prisoner's

dismissal under § 1915(e)(2)(B)(i). Our earlier administrative segregation absent atypical, significant

holdings applying abuse of discretion to such deprivation); Luken v. Scott, 71 F.3d 192, 193 (5th

dismissals control. See, e.g., id.; Siglar v. Hightower, Cir. 1995) (following Sandin); Moody v. Baker,

112 F.3d 191, 193 (5th Cir. 1997) (reviewing dismissal 857 F.2d 256, 257-58 (5th Cir. 1988) (finding no pro-

of claim as frivolous for abuse of discretion); McCor- tectable interest in custody classification).

mick, 105 F.3d at 1061 (same); see also, e.g., Giles v.

5

NYLCare Health Plans, Inc., SSF.3dSS, 1999 U.S. See 42 U.S.C. § 1997e(e) (“No federal civil

App. LEXIS 6370, at *12-*13 & n.14 (5th Cir. action may be brought by a prisoner . . . for mental or

April 9, 1999) (noting that when panel opinions are in emotional injury suffered while in custody without a

conflict, the earlier one controls). prior showing of physical injury.”).

3

be more than de minimus [sic], but need not be he must demonstrate the objective component

significant.” Siglar, 112 F.3d at 193.6 Here, of conditions “so serious as to deprive

Harper does not allege any physical injury; in prisoners of the minimal measure of life's

fact, he explicitly notes that he does “not claim necessities, as when it denies the prisoner

physical abuse.” Without an allegation of a some basic human need.” Id. (quotation

more than de minimis physical injury, this omitted).9 Second, under a subjective

aspect of Harper's complaint lacks any merit. standard, the prisoner must establish that the

responsible prison officials acted with

The underlying claim of an Eighth deliberate indifference to his conditions of

Amendment violation, however, is distinct confinement.10

from this claim for resulting emotional

damages. See Davis, 157 F.3d at 1005. Harper alleges that the conditions of

Section 1997e(e) prohibits only recovery of his confinement have deprived him of

the damages Harper seeks absent a physical cleanliness, sleep, and peace of mind. These

injury. He also seeks a declaration that his conditions include housing in filthy, unsanitary

rights have been violated, and he requests cells. Such conditions, depending on the facts,

injunctive relief to end the allegedly might violate the Eighth Amendment. See

unconstitutional conditions of his confinement; Davis, 157 F.3d at 1006 (and cases cited

these remedies survive § 1997e(e).7 We must therein). In addition, sleep undoubtedly coun-

address, therefore, whether Harper states a ts as one of life's basic needs. Conditions

nonfrivolous Eighth Amendment claim. designed to prevent sleep, then, might violate

the Eighth Amendment. Furthermore, Harper

“The Constitution does not mandate alleges frequent searches with no purpose but

comfortable prisons . . . but neither does it to harass him. The Eighth Amendment

permit inhumane ones, and it is now settled “always stands as a protection against” such

that the treatment a prisoner receives in prison “calculated harassment unrelated to prison

and the conditions under which he is confined needs.” Hudson v. Palmer, 468 U.S. 517, 530

are subject to scrutiny under the Eighth (1984). Finally, Harper alleges deliberate

Amendment.” Woods v. Edwards, 51 F.3d indifference on the part of prison officials

577, 581 (5th Cir. 1995) (internal quotations regarding these conditions.

omitted). A two-part test determines whether

a prisoner has established a constitutional

violation. See Woods, 51 F.3d at 581.8 First, 8

(...continued)

25, 32-33 (following two-part test, with objective and

subjective components); Davis, 157 F.3d at 1006.

6

See also Gomez v. Chandler, 163 F.3d 921,

924 (5th Cir. 1999) (explaining Siglar). 9

See also Helling, 509 U.S. at 32 (holding

prison “must provide for [a prisoner's] basic human

7

See Zehner v. Trigg, 133 F.3d 459, 462 needsSSe.g., food, clothing, shelter, medical care, and

(7th Cir. 1997) (agreeing that prisoner who cannot reasonable safety”); Talib v. Gilley, 138 F.3d 211,

seek damages for mental suffering because of 214 n.3 (5th Cir. 1998).

§ 1997e(e) still can seek injunctive relief).

10

See Farmer v. Brennan, 511 U.S. 825,

8

See also Helling v. McKinney, 509 U.S. 837-43 (1994) (elucidating this subjective component

(continued...) of deliberate indifference); Woods, 51 F.3d at 581.

4

In light of these allegations, we cannot

say that Harper's claim of cruel and unusual

punishment is indisputably meritless. The

court abused its discretion, therefore, in

dismissing it as frivolous.11 We reverse the

dismissal of the claim for declaratory and

injunctive relief from this alleged Eighth

Amendment violation and remand for further

proceedings consistent with this opinion. In all

other respects, we affirm the dismissal of the

complaint as frivolous.

AFFIRMED in part, REVERSED in

part, and REMANDED.12

11

We emphasize that we conclude no more

than that Harper has alleged a nonfrivolous claim of an

Eighth Amendment violation. We do not intimate that

Harper has established, or even stated, a claim on

which relief can be granted.

12

Harper's motion to supplement his brief is

DENIED.

5