Shabazz v. Lynaugh ( 1992 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4120
Summary Calendar
CURTIS SHABAZZ,
Plaintiff-Appellant,
versus
JAMES A. LYNAUGH, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
(September 29, 1992)
Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.
PER CURIAM:
Curtis Shabazz, proceeding pro se and in forma pauperis,
appeals the dismissal under 28 U.S.C. § 1915(d) of his civil rights
suit. The district court found an absence of a significant injury,
a requirement under then controlling circuit precedents. Those
precedents were overruled by the intervening decision of the
Supreme Court in Hudson v. McMillian.1 We vacate and remand for
reconsideration in light of Hudson.
Shabazz filed a 42 U.S.C. § 1983 suit against various
officials of the Texas Department of Criminal Justice and a
corrections officer at the Eastham Unit, complaining of excessive
force which resulted in injury to his knee and shoulder. Following
a Spears2 hearing, and determining that no significant injury was
sustained, the district court exercised the authority vested by
28 U.S.C. § 1915(d) and dismissed the in forma pauperis suit as
frivolous. Shabazz timely appealed.
In overruling this court's precedents, the Hudson Court held
that in order to establish an eighth amendment violation in an
excessive force case, the complainant need not plead and prove
significant injury as a necessary requisite for his claim.
Accordingly, we must vacate the dismissal and remand for
reconsideration in light of the teachings of Hudson. In this
1
_____ U.S. _____, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).
2
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). In
Spears we approved the use of a limited evidentiary hearing in lieu
of a written questionnaire to flesh out the factual and legal bases
for pro se prisoner complaints. These hearings were recorded on
audiotape, a procedure which, after transcription, produced what we
implicitly approved as a sufficient appellate record. See Wesson
v. Oglesby, 910 F.2d 278 (5th Cir. 1990). In the present case, as
in several others previously reviewed by us including 92-4125,
Sparks v. Murphy; 92-4191, Green v. Ward; 92-4183, Green v. Scott;
92-4256, Aguilar v. Terrell; 92-4205, Winn v. Turner; 92-4298,
Graves v. Russell; and 92-4233, Holman v. Reed, the hearing was
recorded on videotape which is superior to the audiotape and, for
Spears hearings purposes, is considered a sufficient record of the
proceedings.
2
reconsideration the district court should look to: the extent of
the injury suffered; the need for application of force; the
relationship between that need and the amount of force used; the
threat reasonably perceived by responsible officials; and any
efforts made to temper the severity of a forceful response.
Hudson.3
VACATED and REMANDED.
3
_____ U.S. at _____, 112 S.Ct. at 999, 117 L.Ed.2d at 166
(citing Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 1085,
89 L.Ed.2d 251, 261-62 (1986)).
3