Geiger v. Jowers

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