Green v. Barlow et al, No. 4:2016cv01700 - Document 8 (S.D. Tex. 2016)
Court Description: MEMORANDUM OPINION AND ORDER: 1 Complaint is dismissed with prejudice as frivolous. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Green v. Barlow et al Doc. 8 United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIV ISION October 21, 2016 David J. Bradley, Clerk BRYAN EDWIN GREEN , TDCJ #1974579, Plaintiff, CIVIL ACTION NO . H -l6-1700 V . OFFICER RACHELLE BARLOW , et al., Defendants . MEMORAHDUM OPINION AND ORDER The plaintiff, Bryan Edwin Green ( TDCJ #1974579), has filed a complaint under 42 U. . 5 1983 ( S C. ucomplaint' , alleging violations o of his civil rights ( Docket Entry No . At the court's request, Green has also filed Plaintiff's More Defin ite Statement of his claims ( Docket Entry No. court is required to Because Green is incarcerated, the scrutinize the claims and dismiss the Complaint , in whole or in part, if it determines that the Complaint 'is frivolous, malicious, or fails to state a claim upon which ' relief may be granted' or useeks monetary relief from a defendant ' who is immune from such relief.' ' 28 U.S. C. 1915A ( b) After considering a11 of the pleadings, the court concludes that this case must be dism issed for the reasons explained below . 1. Backqround Green is currently incarcerated by the Texas Department of Criminal Justice - Correctional Institutions Division I'TDCJ' at A 'I Dockets.Justia.com the Clements Unitx The defendants are two correctional officers employed by TDCJ at the Holliday Unit : Officer Rachelle Brown and Major Robert K. Castleberry. z The Complaint concerns an incident that occurred at the Holliday Unit on the morning of April 2015 .3 Green explains that he was in the infirmary for an examination of his right ankle , which he had injured while working in the Holliday Unit kitchen on April 2015 .4 Following the exam ination Officer Barlow ordered Green to remain in the infirmary holding cell for a headcount .s Barlow began arguing with the inmates and using abusive language .6 During her tirade Barlow accused Green of giving her incorrect information about his housing assignment and interfering with the headcount .? Barlow then shoved Green three times, once with her body and twice with her arm s, pushing Green back and causing him to twist his injured ank1e. When Green comp lained about Barlow 's 8 actions, Major Castleberry reportedly threatened him by saying nthe lcomplaint, Docket Entry No . p . 3. 2Id . 3 , at Id 4plaintiff's More Definite Statement , Docket Entry No . 7 , p . 2 . 5Id . at 6Id . at 7Id . at 3-4 . Bcomplaint , Docket Entry No . 1 , pp . 4 , 87 Plaintiff's More Definite Statement, Docket Entry No . 7 , p . 7 . next time will make sure that we leave b igger bruises on your Che St. &S . Green contends that Barlow used excessive force and that Castleberry verbally threatened constitutional rightsx o him in v iolation his Green seeks compensatory and punitive damages in the amount of $50,000.00 from each defendantxl II . Discussion A. Verbal Threats well established that verbal threats , insults, or It ep ithets in the prison contex t do not amount to a constitutional violation and are not actionable under 42 U .S .C . 5 1983 . See Calhoun v. Hargrove, 312 F . 730, 734 ( 3d 5th Cir. 2002); Siglar v . Hightower , F.3d ( 5th Cir . 1997); Robertson v . Plano Citv of Texas, 70 F.3d 21, 24 ( 5th Cir. 1995) ( citing McFadden v. Lucas, F .2d F.3d 271, 274 683 1983)); Bender v . Brumlev, Supp . 2d ( 5th Cir. 1993); Spicer v . Collins, ( . . Tex . 1998) ( E D citations omitted). Accordingly , Green's claim against Major Castleberry is frivolous. B. Excessive Force Claims of excessive force in the prison setting are governed by the Eighth Amendment, wh ich gcomp laint , Docket Entry No . 1 0Id . at 9. l lld at 4 . prohib its p. cruel and unusual punishment, i .e ., the nunnecessary and wanton infliction of pain .' ' Wilson v . Seiter, 11l S . Ct. 2321, 2323 ( 1991) ( citation and internal quotation marks omitted) Not every malevolent touch by a prison guard gives rise to a constitutional violation under the Eighth Amendment . See Hudson v . McMillian , 112 S . Ct . 995, 1000 ( 1992) ( citing Johnson v. Glick, 481 F. 1028, 1033 2d Cir. 1973) ('Not every push or shove, even if it may later seem unnecessary in ' the peace a judge's constitutional rights' 'l). chambers, violates In a that respect , the prisoner' s constitution excludes from recognition éq minimis uses of physical force, provided that the use of force is not of a sort ' ''repugnant to the conscience of mankind.'' Hudson, 112 S. ' at 1000 ( citation and quotation omitted). Green contends that Officer Barlow shoved him , causing him to twist his previously injured right ankle, which resulted in usignificant pain and increased swelling' that lasted for one week ' after incidentx z The incident described by Green does not appear to have resulted in a more-than- minimis injury as a éq direct result of the use of force . F. 3d See Siglar v . Hiqhtower , 112 ( 5th Cir. 1997) ( holding that a sore, bruised ear lasting for three days was éq minimis and not sufficient to state a claim for excessive force) Even assuming that did, the physical force emp loyed was not so repugnant as to shock the H plaintiff's More Definite Statement, Docket Entry No . p. conscience. A éq minimis use of force, such as a push or a shove, does not implicate constitutional concerns . See Hudson , 112 S . Ct . at 1000 . Under these circumstances Green fails to establish an Eighth Amendment violation . Accordingly , the court concludes that Green 's claim against Officer Barlow is also frivolous x 3 111. Conclusion and Order Based on the foregoing , the court ORDERS as follows : The Complaint filed by Bryan Edwin Green ( TDCJ #1974579) ( Docket Entry No. 1) is DISMISSED with prejudice as frivolous. The dismissal will count as a STRIKE for purposes of 28 U. . 5 l91S( S C. g). The Clerk is directed to provide a copy of this Memorandum Opinion and Order to the parties . The Clerk will also provide a copy transmission , or by regular mail, facsimile the TDCJ e -mail to : Office of the General Counsel. P .O . Box 13084, Austin, Texas 78711, Fax Numher 512-936-2159; and ( the District 2) Clerk for the Eastern District of Texas , Ty ler Division , 21l West HGreen reports that he filed a similar lawsuit against Barlow and Castleberry in state court, alleging state 1aw claim s of assault and battery stemming from the same April 6, 2015, incident . See Plaintiff's More Definite Statement , Docket Entry No . 7, pp . 10-12 . That case , Walker County cause number 1527478, was dismissed as frivolous . See id . at 11 . The trial court's decision has been affirmed on appeal . See Green v . Barlow , No . 10-15-00387- CV , 2016 WL 4249045 ( Tex. App . - Waco Aug . 1O, 2016, no pet.). To the extent that the Comp laint in this case arises from the same set of events, it is arguably malicious. See 28 U. . S C. 5 19l5A ( b). Ferguson , Tyler, Texas 75702 , Attention : Manager of the Three- Strikes List . SIGNED at Houston , Texas, on this 21st day of October , 2016 . e e SIM LAKE UN ITED STATES DISTRICT JUDGE - 6-
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