Hernandez vs. Wooten, (5th Cir. 2003)
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* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .
R. 47.5.4. United States Court of Appeals Fifth Circuit FILED May 6, 2003 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 02-41463 Summary Calendar DAVID ARRON HERNANDEZ, Plaintiff-Appellant, versus CAL WOOTEN, SR.; HARRELL, Captain; FILLMORE, Lieutenant, DefendantsAppellees. Appeal from the United States District Court for the Southern District of Texas USDC No. G-00-CV-79 Before JONES, STEWART and DENNIS, Circuit Judges.
PER CURIAM: * David Arron Hernandez, Texas prisoner # 646920, appeals the 28 U.S.C. § 1915(e)(2)(B) dismissal as frivolous of his 42 U.S.C. § 1983 civil rights lawsuit. He renews his failure-to-protect and excessive-force claims but briefs no argument regarding his claims that he was retaliated against, that he was discriminated against, or that the appelleesÂ’ conduct violated his due-process rights and the Ruiz consent decree, and those claims are waived. S ee Yohey v. Co llins , 985 F.2d 222, 224-25 (5th Cir. 1993).
The district court did not abuse its discretion in dismissing HernandezÂ’s claims as frivolous.
The failure-to-protect claim fails because Hernandez alle ged no resulting physical injury. S ee J ones v. Greninger , 188 F.3d 322, 326 (5th Cir. 1999). The excessive-force claim fails because Hernandez alleged only that he had been handcuffed too tightly, resulting in pai n and swelling; there was no allegation that the handcuffs were applied with the intent to cause him pain or that he was subjected to any force other than the handcuffing. S ee Glenn v. City of Tyler , 242 F.3d 307, 314 (5th Cir. 2001).
HernandezÂ’s appeal is without arguable merit, is frivolous, and is t herefore DISMISSED.
See Howard v. King , 707 F.2d 215, 219-20 (5th Cir. 1983); 5 TH C IR .
R. 42.2. The district court§ 1915(g), and this court§ 1915(g). APPEAL DISMISSED; THREE-STRIKES WARNING ISSUED.
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This document cites
- US Code - Title 28: Judiciary and Judicial Procedure - 28 USC 1915 - Sec. 1915. Proceedings in forma pauperis
- US Code - Title 42: The Public Health and Welfare - 42 USC 1983 - Sec. 1983. Civil action for deprivation of rights
- U.S. Court of Appeals for the Fifth Circuit - Deborah Ann Glenn, Plaintiff-Appellee, v. City of Tyler; Kyle Rhodes, Tyler Police Officer in His Individual Capacity; Brian Tomlin, Tyler Police Officer in His Individual Capacity, Defendants-Appellants., 242 F.3d 307 (5th Cir. 2001)
- U.S. Court of Appeals for the Fifth Circuit - James Stephen Jones, Plaintiff-Appellant, v. M.L. Greninger; Et Al., Defendants, M.L. Greninger; Yolanda Cornelius; Ralph Figueroa, Defendants-Appellees., 188 F.3d 322 (5th Cir. 1999)
- U.S. Court of Appeals for the Fifth Circuit - Clinton C. Howard, Jr., and Michael Chapman and Kenneth Robinson, Plaintiffs-Appellants, v. John T. King, Secretary, Department of Corrections, and Ross Maggio, Jr., Warden, Louisiana State Penitentiary, Defendants-Appellees., 707 F.2d 215 (5th Cir. 1983)
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