Calhoun v. Hargrove , 71 F. App'x 371 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS August 14, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-10211
Summary Calendar
EDWARD JAMES CALHOUN,
Plaintiff-Appellant,
versus
CLYDE HARGROVE; MARK ATKINS,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 7:99-CV-00219
--------------------
Before JOLLY, SMITH, and WIENER, Circuit Judges.
PER CURIAM:*
Edward James Calhoun, Jr., Texas prisoner # 680175, appeals
from an order granting summary judgment to defendants in his 42
U.S.C. § 1983 complaint. This is Calhoun's second appearance
before this court. In his first appeal from the district court's
FED. R. CIV. P. 12(b)(6) dismissal, we held that Calhoun's claims
that he was verbally abused and harassed and forced to beg for
food on one occasion failed to allege a physical injury as
*
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that this opinion should not be published and is not precedent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.
No. 03-10211
-2-
required by 42 U.S.C. § 1997e(e) and were not actionable as
Eighth Amendment violations under 42 U.S.C. § 1983. We remanded,
however, for the court to conduct an evidentiary hearing on
Calhoun's claim that Hargrove violated his Eighth Amendment right
to be free from cruel and unusual punishment by forcing him to
work beyond his medical restrictions, thereby causing him to have
dangerously elevated blood pressure readings on June 24, 1999.
We directed the court to consider whether this incident had
caused any physical injury to Calhoun. See Calhoun v. Hargrove,
312 F.3d 730, 734-35 (5th Cir. 2002).
Calhoun now argues that the magistrate judge erroneously
granted Hargrove summary judgment without considering his entire
medical record and without appointing him counsel. Our review of
the record shows that the magistrate judge did not err in
concluding that there was no showing of physical injury to
Calhoun and properly granted summary judgment. See 42 U.S.C.
§ 1997e(e); Herman v. Holiday, 238 F.3d 660 (5th Cir. 2001). We
also conclude that the magistrate judge did not abuse his
discretion by not appointing counsel for Calhoun. See Jackson v.
Dallas Police Dep't, 811 F.2d 260, 261 (5th Cir. 1986); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).
Calhoun argues that the magistrate judge failed to notice
that his complaint also requested injunctive relief and that a
physical injury is not required for such a claim. We have
already determined that Calhoun's claims for verbal abuse and
No. 03-10211
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harassment are not actionable under the Eighth Amendment. See
Calhoun, 312 F.3d at 734. Further, injunctive relief in
connection with Calhoun's claim that he was forced to work beyond
his medical restrictions is moot because he asserted that he has
been relieved of all job duties. Cf. Herman, 238 F.3d at 665(claims for declaratory and injunctive relief following alleged
exposure to asbestos rendered moot by prisoner's transfer to
another correctional facility).
AFFIRMED.