Melvin Wiand v. U.S. DOJ Fed Bureau of Prisons, et ( 2019 )

Case: 18-10701 Document: 00514976403 Page: 1 Date Filed: 05/30/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 18-10701 FILED
Summary Calendar May 30, 2019
Lyle W. Cayce
Clerk
MELVIN WIAND,
Plaintiff-Appellant
v.
UNITED STATES DEPARTMENT OF JUSTICE FEDERAL BUREAU OF
PRISONS; UNITED STATES ARMED FORCES RESERVE COMPLEX,
Defendants-Appellees
Appeals from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CV-3354
Before DENNIS, GRAVES, and COSTA, Circuit Judges.
PER CURIAM: *
Melvin Wiand, federal prisoner # 37221-177, moves for leave to proceed
in forma pauperis (IFP) in this appeal from the dismissal of his complaint
under the Federal Tort Claims Act (FTCA) and Bivens v. Six Unknown Named
Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Wiand’s complaint
is based on an offensive comment made to him by a federal corrections officer.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Along with his IFP motion, Wiand moves to supplement the record with
the response to his Freedom of Information Act request related to his
administrative case and moves for in camera review of those documents. Most
of the documents Wiand submits are already in the record and those that are
not in the record do not provide additional information about his claims. The
motions are DENIED.
By moving in this court to proceed IFP, Wiand is challenging the district
court’s determination that his appeal is not taken in good faith. Baugh v.
Taylor, 117 F.3d 197, 202 (5th Cir. 1997). A motion for leave to proceed IFP
on appeal “must be directed solely to the trial court’s reasons for the
certification decision.” Id. This court’s inquiry into good faith “is limited to
whether the appeal involves legal points arguable on their merits (and
therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983)
(internal quotation marks and citation omitted).
The district court dismissed Wiand’s FTCA claim, finding that (1) he
failed to name the proper defendant, (2) his complaint was barred under 42
U.S.C. § 1997e(e); and (3) his claim was otherwise meritless. The court
concluded that the officer’s comment “amounted to a rude or insensitive insult,
rather than an atrocious comment utterly intolerable in a civilized society” and
was therefore insufficiently serious to support a state-law claim of intentional
infliction of emotional distress. See GTE Southwest., Inc. v. Bruce, 998 S.W.2d
605, 612 (Tex. 1999) (citations omitted). Besides Wiand’s conclusory assertions
that the officer’s comments were atrocious and intolerable, he has not argued
that the district court erred in rejecting his FTCA claim. See GTE Southwest,
Inc. v. Bruce, 998 S.W.2d 605, 611-12 (Tex. 1999); Twyman v. Twyman,
855 S.W.2d 619, 621 (Tex. 1993). He has not shown that his FTCA claim
contains legal points arguable on their merits. Howard, 707 F.2d at 220.
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The district court also denied Wiand’s motion for leave to amend his
complaint to assert a Bivens claim, finding that the claim was time-barred and
without merit. Wiand asserts that the original filing date of his Bivens action
reveals that it is not time-barred. This assertion is belied by the record, and
Wiand has presented no other argument with respect to the district court’s
conclusion. See Cooper v. Brookshire, 70 F.3d 377, 380 n.20 (5th Cir. 1995).
Additionally, Wiand has not shown that the district court erred in finding that
his Bivens claim lacks merit. To state a civil rights action under Bivens, an
inmate must show a constitutional violation. See Abate v. Southern Pacific
Transp. Co., 993 F.2d 107, 110 (5th Cir. 1993). In this circuit, verbal abuse by
prison guards does not give rise to a constitutional cause of action, and
Congress has provided that mental and emotional injuries are not compensable
when they are not accompanied by a qualifying physical injury. See Siglar v.
Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (applying 42 U.S.C. § 1997e(e));
see also Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002). Thus, Wiand
has not shown that there is a nonfrivolous issue whether the district court
erred in determining that the Eighth Amendment claim is time-barred and
without merit. See Howard, 707 F.2d at 220.
Wiand has not shown that the district court erred in determining that
his appeal was not taken in good faith. See Baugh, 117 F.3d at 202. His appeal
is DISMISSED as frivolous. See 5TH CIR. R. 42.2; Baugh, 117 F.3d at 202 n.24.
Wiand was warned previously that the filing of frivolous appeals might
invite the imposition of sanctions. See United States v. Wiand, 673 F. App’x
429, 430 (5th Cir. 2017). We again WARN Wiand that any future frivolous,
repetitive, or otherwise abusive filings will invite the imposition of additional
and progressively severe sanctions, which may include dismissal, monetary
sanctions, and restrictions on his ability to file pleadings in this court and any
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court subject to this court’s jurisdiction. Wiand should review any pending
appeals and actions and move to dismiss any that are frivolous, repetitive, or
otherwise abusive.
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