This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1624

 

Paul Reyes,

Appellant,

 

vs.

 

Sgt. Galland,

Respondent,

 

M. Rustand,

Respondent,

 

John Does 1-6,

Defendants.

 

Filed March 28, 2000

Affirmed

Harten, Judge

Dissenting, Lansing, Judge

 

Swift County District Court

File No. C3-99-165

 

Paul Reyes, Prairie Correctional Facility, Unit BD-06, #4574, P.O. Box 500, Appleton, MN 56208 (appellant pro se)

 

Sgt. Galland, M. Rustand, Prairie Correctional Facility, P.O. Box 500, Appleton, MN 56208 (respondents pro se)

 

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.


U N P U B L I S H E D   O P I N I O N

HARTEN, Judge

Pro se appellant challenges the district court’s denial of his motion to proceed in forma pauperis and its dismissal of his claim with prejudice.   Because we see no abuse of discretion, we affirm. 

FACTS

            On February 8, 1999, corrections officers at the Prairie Correctional Facility conducted an early morning shakedown of appellant Paul Reyes’ prison cell.  Reyes filed with institution officials three successive grievance forms each claiming that the corrections officers had used excessive force.[1]  Institution officials denied the grievances because Reyes told medical personnel present at the shakedown that he had no injuries and needed no medical attention.

Reyes filed a motion to proceed in forma pauperis and a complaint against the corrections officers alleging personal injuries and civil rights violations stemming from their alleged use of excessive force.  The district court denied Reyes’ motion and dismissed his claims with prejudice.  This appeal followed.


D E C I S I O N

A district court must dismiss with prejudice an action brought by an inmate seeking to proceed in forma pauperis if the court finds that the action is frivolous or malicious.  Minn. Stat. § 563.02, subd. 3 (1998).

A frivolous claim is without any reasonable basis in law or equity and could not be supported by a good faith argument for [a] * * * modification or reversal of existing law.

 

Maddox v. Department of Human Services, 400 N.W.2d 136, 139 (Minn. App. 1987) (quotation omitted).  The district court has broad discretion in allowing in forma pauperis proceedings and will not be reversed absent an abuse of discretion.  Id. (citing Thompson v. St. Mary's Hospital, 306 N.W.2d 560, 563 (Minn. 1981).  Here, the district court found Reyes’ claims frivolous because

[p]laintiff has done nothing more than allege that he was subject to a routine prison security procedure.  This treatment is not shocking given the plaintiff’s status as a prisoner.  There is no basis in law under which the Court should intervene in this case.

 

Reyes argues that the district court abused its discretion by denying his motion to proceed in forma pauperis and dismissing with prejudice his claims based on excessive force.  To succeed on a claim of excessive force, Reyes must show that the respondents acted maliciously and sadistically to cause harm.  Hudson v. McMillian, 503 U.S. 1, 7, 112 S. Ct. 995, 999 (1992).  Here, there is evidence of some force, i.e., a shakedown, but there is no evidence that the corrections officers acted maliciously or sadistically.

Reyes relies on Hudson to argue that he does not need to show significant injury to support his claim of excessive force.  In Hudson, an inmate suffered bruises, facial swelling, loosened teeth, and a cracked dental plate when beaten by prison guards.  Id. at 4, 112 S. Ct. at 997.  The Supreme Court held that the Eighth Amendment’s prohibition against “cruel and unusual” punishment does not require a showing of serious injury.  Id. at 9-10, 112 S. Ct. at 1000.  But Hudson also states that “de minimis uses of physical force are excluded provided they are not of a sort ‘repugnant to the conscience of mankind.’”  Id. (citations omitted).

On the record Reyes submitted, the most he can show is that he required Ibuprofen and a hot water bottle two weeks after the shakedown.  But his denial of injury at the time of the shakedown shows more directly that the force used by the corrections officers was de minimis and is not repugnant to the conscience of mankind.  Accordingly, the district court did not abuse its discretion in concluding that Reyes' claims are frivolous, in denying the application to proceed in forma pauperis, and in dismissing his claims with prejudice.

Affirmed.

 

LANSING, Judge (dissenting)

I respectfully dissent for two reasons.  First, Reyes presented evidence of more than de minimis use of force:  (1) Reyes was asleep when prison officers in riot gear entered his cell at three a.m.; (2) the officers handcuffed Reyes’s hands behind his back and lifted Reyes off his top bunk by the handcuffs, placing his entire body weight on his arms; (3) with Reyes’s arms extended unnaturally behind his back, the officers threw him to the floor; (4) Reyes’s face smashed against the bottom bunk and the floor; (5) the officers then forced Reyes out of the cell, some holding his handcuffs and some pushing him forward, again forcefully and unnaturally extending his arms behind his back; (6) during this “shakedown” the officers threatened to hurt or shoot Reyes if he moved; (7) Reyes reported pain in his neck and shoulders and, at the time of this appeal, was awaiting permission and payment from his home state for x-rays and an MRI. 

Second, the use of unreasonable or excessive force provides a legally sufficient basis for a complaint even if the resulting injuries are not severe.  See Hudson v. McMillian, 503 U.S. 1, 9, 112 S. Ct. 995, 1000 (1992).  Unnecessary and wanton use of force constitutes cruel and unusual punishment forbidden by the Eighth Amendment.  Id., 503 U.S. at 5, 112 S. Ct. at 998; Johnson v. Glick, 481 F.2d 1028, 1029-30, 1033 (2d Cir. 1973) (holding prisoner stated claim for excessive force when he alleged officer grabbed him by the collar, struck him twice in the head, and threatened to kill him), cert. denied by Employment-Officer John v. Johnson, 414 U.S. 1033 (1973); Miller v. Leathers, 913 F.2d 1085, 1087, 1089 (4th Cir. 1990) (holding summary judgment inappropriate when prisoner asserted that guard struck him with baton and threatened to kill him), cert. denied 498 U.S. 1109 (1991).

In determining whether force was unnecessary and wanton, courts should consider the need for the application of force, the relationship between that need and the amount of force used, the extent of injuries, the threat reasonably perceived by prison officials, and any efforts to temper the severity of a forceful response.  Hudson, 503 U.S. at 7, 112 S. Ct. at 999; Johnson, 481 F.2d at 1033.  The extent of injury is just one of the factors considered.  Hudson, 503 U.S. at 7, 112 S. Ct. at 999; see also Corselli v. Coughlin, 842 F.2d 23, 26 (2d Cir. 1988) (reversing summary judgment against prisoner who suffered a cut lip).  The ultimate determination is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.”  Hudson, 503 U.S. at 7, 112 S. Ct. at 999.

Because Reyes has alleged the use of more than de minimis force disproportionate to the degree of force needed to restrain Reyes while conducting a planned nighttime search of his cell, I would reverse and remand to allow further consideration of Reyes’s petition to proceed in forma pauperis.

 



[1]  The only medical documentation in the record supporting appellant’s personal injury claims is a prescription for Ibuprofen and a hot water bottle issued on February 22, 1999.