Praylor v. Fitzrandolph , 124 F. App'x 251 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT February 23, 2005
Charles R. Fulbruge III
Clerk
No. 04-50684
Conference Calendar
JOSHUA PRAYLOR,
Plaintiff-Appellant,
versus
RONALD FITZRANDOLPH; WILLIAM PRUDIE, JR;
ADAM DOOLEY; EDWARD SMITH, Assistant
Warden; JESSE SHUCK,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:03-CV-436
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Before BARKSDALE, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Joshua Praylor, Texas prisoner # 1128305, appeals from the
dismissal of his 42 U.S.C. § 1983 civil rights complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B). Praylor argues that prison
officials exercised excessive force, violated his right to equal
protection, and caused him mental anguish as a result of an
altercation during a housing transfer.
*
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this opinion should not be published and is not precedent except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. 04-50684
-2-
Because Praylor’s claims against Smith and Shuck stem
strictly from their supervisory roles and because he has not
shown that they implemented a policy that resulted in a
constitutional violation, Praylor has not raised a cognizable
constitutional claim as to these defendants. See Thompkins v.
Belt, 828 F.2d 298, 303-04 (5th Cir. 1987).
Praylor has not stated an Eighth Amendment claim because his
injuries were de minimis and because he has not shown that the
force deployed in light of his resistance to being subdued was
“repugnant to the conscience of mankind.” See Baldwin v.
Stalder, 137 F.3d 836, 838-39 (5th Cir. 1998).
Praylor’s claim that the prison fails to follow its policies
regarding life endangerment requests does not amount to a
constitutional violation. See Edwards v. Johnson, 209 F.3d 772,
779 (5th Cir. 2000). Praylor’s assertion that “other inmates”
were granted such requests is conclusional and thus does not
state an equal protection violation. See Koch v. Puckett,
907 F.2d 524, 530 (5th Cir. 1990).
Likewise, Praylor’s claim for mental anguish fails to state
a cognizable constitutional claim. Because his injuries were
de minimis, his claim is not actionable under 42 U.S.C. § 1983.
See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997).
Praylor’s appeal is without arguable merit and is thus
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983). As such, it is DISMISSED. See 5TH CIR. R. 42.2.
No. 04-50684
-3-
The magistrate judge’s dismissal of Praylor’s claims pursuant to
28 U.S.C. § 1915(e)(2)(B) and the dismissal of the instant appeal
as frivolous count as two strikes under 28 U.S.C. § 1915(g).
See Adepegba v. Hammons, 103 F.3d 383, 385-87 (5th Cir. 1996).
Praylor is cautioned that once he accumulates three strikes, he
will not be permitted to proceed in forma pauperis in any civil
action or appeal filed while he is incarcerated or detained in
any facility unless he is under imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
APPEAL DISMISSED AS FRIVOLOUS; SANCTION WARNING ISSUED.