White v. Ellege ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-40316
Summary Calendar
MELVIN RAY WHITE,
Plaintiff-Appellant,
versus
RICKY ELLEDRIDGE, Correctional Officer III; GARY L. JOHNSON,
Director, Texas Department of Criminal Justice,
Institutional Division,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Texas
(6:00-CV-729)
August 22, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Melvin Ray White, Texas inmate #582778, appeals from the
district court's dismissal of his civil rights complaint. The court
dismissed White's complaint as frivolous and for failure to state
a claim.1
*
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this opinion should not be published and is not precedent except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.
1
See 28 U.S.C. § 1915(e)(2)(B)(i), (ii) (2001).
We find no error in the court's actions. Although White
alleged that he was verbally abused by Elledridge, verbal abuse by
a prison official is insufficient to state a section 1983 claim.2
Moreover, "[t]he Eighth Amendment's prohibition of cruel and
unusual punishments necessarily excludes from constitutional
recognition de minimis uses of physical force, provided that the
use of force is not of a sort repugnant to the conscience of
mankind."3 Consequently, Elledridge's alleged pushing and shoving
of White does not implicate the Eight Amendment.4
White's assertion of emotional harm also does not support a
section 1983 claim. Allegations of mental stress do not support a
section 1983 claim without a prior showing of physical injury.5
White has made no such showing.
Finally, Elledridge's alleged conduct does not create the risk
of imminent future danger sufficient to generate section 1983
liability. In the absence of present physical injury, an inmate may
obtain injunctive relief under section 1983 against "sufficiently
imminent dangers" that are likely to cause harm in the "next week
2
See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
3
Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (internal
quotations and citations omitted).
4
See id.
5
See Siglar, 112 F.3d at 193-94.
2
or month or year."6 White alleges that Elledridge shoved him in a
hallway, pushed him as he exited a barbershop, confiscated his
shower bag, and verbally abused him. These allegations do not
support a section 1983 claim based on imminent harm.7
We conclude that the district court did not err in dismissing
the complaint for failure to state a claim. Nor do we find that the
court abused its discretion in dismissing the complaint as
frivolous.8 The district court's judgment is therefore
AFFIRMED.
Moreover, White is hereby informed that the district court's
dismissal of this action as frivolous counts as a strike for
purposes of § 1915(g). We caution White that once he accumulates
three strikes, he may not proceed IFP either in any civil action or
in any appeal of a civil action which is filed while he is
incarcerated or detained in any facility, unless he is under
imminent danger of serious physical injury.9
JUDGMENT AFFIRMED; THREE-STRIKES WARNING ISSUED.
6
Helling v. McKinney, 509 U.S. 25, 32-35 (1993); see also
Herman v. Holiday, 238 F.3d 660, 664-65 (5th Cir. 2001).
7
See Helling, 509 U.S. at 32-35.
8
See Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998);
Siglar, 112 F.3d at 193-94.
9
See 28 U.S.C. § 1915(g) (2001).
3