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United States Court of Appeals,
Fifth Circuit.
No. 96-11096
Summary Calendar.
Lee Andrew SIGLAR, II, Plaintiff-Appellant,
v.
Elvis HIGHTOWER; Ejike S. Nwose; James L. Alexander, Co II;
Melissa K. Whitehead, Defendants-Appellees.
May 8, 1997.
Appeal from the United States District Court for the Northern
District of Texas.
Before JONES, DeMOSS and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Lee Andrew Siglar, II, Texas prisoner # 96054477 ("Siglar"),
filed a civil rights action pursuant to 42 U.S.C. § 1983 against
Warden Elvis C. Hightower ("Hightower") and Corrections Officers
Ejike S. Nwose ("Nwose"), James L. Alexander ("Alexander") and
Melissa Whitehead ("Whitehead"). The district court dismissed
Siglar's complaint as frivolous under 28 U.S.C. § 1915(e)(2) and
Siglar appealed.
FACTS
Siglar alleged the following facts in his complaint, in
response to the court's questionnaire and in a Spears1 hearing.
Siglar was stopped in the hall of his prison unit by Officer
Whitehead while returning from breakfast. Whitehead directed
Siglar to stand and face the wall while she searched him. A
1Spears v. McCotter, 766 F.2d 179 (5th Cir.1985).
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biscuit was found in his jacket pocket. Whitehead called for
backup. Nwose responded to Whitehead's call and verbally and
physically abused Siglar during the incident. Without provocation,
Nwose twisted Siglar's arm behind his back and twisted Siglar's
ear. Siglar's ear was bruised and sore for three days but he did
not seek or receive medical treatment for any physical injury
resulting from the incident. There is no allegation that he
sustained long term damage to his ear. Whitehouse and Alexander
witnessed the incident and did not intervene to protect Siglar from
Nwose. Hightower was the Warden of the unit and Siglar contends
that he was negligent in his supervision of Nwose and his handling
of Siglar's subsequent complaint against Nwose.
DISCUSSION
Siglar's complaint, filed in forma pauperis ("IFP") may be
dismissed as frivolous if it lacks an arguable basis in law or
fact. 28 U.S.C. § 1915(e)(2)(B)(i); Eason v. Thaler, 14 F.3d 8,
9 (5th Cir.1994). 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. Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct.
1827, 1832-33, 104 L.Ed.2d 338 (1989). This court reviews a §
1915(e) dismissal for abuse of discretion. Graves v. Hampton, 1
F.3d 315, 317 (5th Cir.1993).
The district court held that Siglar's claim is without an
arguable basis in law. It is clear that verbal abuse by a prison
guard does not give rise to a cause of action under § 1983. See
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Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir.1993). The
district court then determined that no qualifying physical injury
resulted from the incident. The district court referenced a new
statutory provision, 42 U.S.C. § 1997e(e), enacted as part of the
Prison Litigation Reform Act, which provides:
No Federal civil action may be brought by a prisoner confined
in a jail, prison or other correctional facility for mental or
emotional injury suffered while in custody without a prior
showing of physical injury.
The question for this court is whether Siglar's bruised ear
amounts to a "physical injury" that can serve as the basis for his
excessive force or mental and emotional suffering claims. The
Supreme Court has defined the parameters for Eighth Amendment
claims arising out of injuries suffered by prisoners at the hands
of prison guards: whether force was applied in good-faith effort
to maintain or restore discipline, or maliciously and sadistically
to cause harm. Hudson v. McMillian, 503 U.S. 1, 7, 112 S.Ct. 995,
999, 117 L.Ed.2d 156 (1992). The absence of serious injury, while
relevant to the inquiry, does not preclude relief. Id. However,
the Eighth Amendment's prohibition of cruel and unusual punishment
excludes from constitutional recognition de minimus uses of
physical force, provided that the use of force is not of a sort
"repugnant to the conscience of mankind." Id. at 10, 112 S.Ct. at
1000.
In the absence of any definition of "physical injury" in the
new statute, we hold that the well established Eighth Amendment
standards guide our analysis in determining whether a prisoner has
sustained the necessary physical injury to support a claim for
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mental or emotional suffering. That is, the injury must be more
than de minimus, but need not be significant. See id.
We conclude that Siglar's alleged injury--a sore, bruised ear
lasting for three days--was de minimus. Siglar has not raised a
valid Eighth Amendment claim for excessive use of force nor does he
have the requisite physical injury to support a claim for emotional
or mental suffering. We therefore hold that the district court did
not abuse its discretion in ordering the dismissal of Siglar's
claims.
AFFIRMED.

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