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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
No. 97-60822
_______________
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.
_________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_________________________
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 unitSSa 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 further 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
him to cruel and unusual punishment and that
Neither the magistrate judge nor Harper
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
jurisprudence, we have determined that the
failure to state a claim on which relief may be granted
"physical injury" required by § 1997e(e) "must
pursuant to § 1915(e)(2)(B)(ii). See Black v. Warren,
134 F.3d 732, 734 (5th Cir. 1998) (applying de novo
review to § 1915(e)(2)(B)(ii) and abuse of discretion
review to § 1915(e)(2)(B)(i)). Here, the court
4 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.
NYLCare Health Plans, Inc., SSF.3dSS, 1999 U.S.
5 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