Donnelly v. Darby , 81 F. App'x 823 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 25, 2003
Charles R. Fulbruge III
Clerk
No. 02-60874
Summary Calendar
LONNIE DONNELLY,
Plaintiff-Appellant,
versus
JAMIE DARBY, Commander; JAMIE CLARK;
SCOTT FITCH; DOUG SPROAT,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:02-CV-402-BN
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Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Lonnie Donnelly, Mississippi prisoner # K1304, appeals the
magistrate judge’s dismissal as frivolous and for failure to
state a claim of his 42 U.S.C. § 1983 complaint against
defendants Jamie Darby and Jamie Clark. Donnelly had previously
voluntarily dismissed his claims against defendants Scott Fitch
and Doug Sproat. Donnelly asserts that Darby and Clark used
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 02-60874
-2-
excessive force against him by spraying mace in his face and
denied him medical care after the spraying.
Donnelly has not established that the delay he suffered in
receiving medical care was due to deliberate indifference or that
he suffered substantial harm as a result of the delay. See
Mendoza v. Lynaugh, 989 F.2d 191, 195 (5th Cir. 1993). The
magistrate judge’s dismissal of the claims is therefore AFFIRMED.
With respect to the excessive-force claims, the magistrate
judge erred in concluding that Donnelly engaged in a verbal
confrontation with Clark or Darby that would have excused the
spraying of mace. See Calhoun v. Hargrove, 312 F.3d 730, 733
(5th Cir. 2002). However, this error is harmless. As Donnelly
admits that he received a disciplinary conviction arising from
the same action of which he complains now, his claims are barred.
See Edwards v. Balisok, 520 U.S. 641, 648-49 (1997); Heck v.
Humphrey, 512 U.S. 477, 487 (1994); Hainze v. Richards, 207 F.3d
795, 798-99 (5th Cir. 2000). Therefore, the claim was frivolous
and could be dismissed. See Siglar v. Hightower, 112 F.3d 191,
193 (5th Cir. 1997), Accordingly, the judgment of the magistrate
judge is AFFIRMED.
Donnelly has moved for appointment of counsel. This motion
is DENIED.