Souder v. Webb , 198 Ga. App. 419 ( 1991 )

198 Ga. App. 419 (1991) 401 S.E.2d 630

SOUDER
v.
WEBB et al.

A90A1978.

Court of Appeals of Georgia.

Decided January 31, 1991.

Harold Souder, pro se.

Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, for appellees.

COOPER, Judge.

Appellant appeals an order of the trial court dismissing his case and assessing attorney fees against him pursuant to OCGA § 9-15-14. Appellant is an inmate who filed suit in forma pauperis pursuant to 42 USCA § 1983, asserting a violation of his constitutional rights against cruel and unusual punishment. Appellant contended that the alleged constitutional violations occurred on three separate occasions several years ago when he was required to (1) stand up on a bus en route to a work detail, (2) wear tennis shoes on a work detail and (3) wear rubber boots on a work detail which resulted in injury to his toenail. Appellant sought $250,000 in damages. Appellant has previously raised these exact issues in federal court where they were dismissed as legally frivolous under 28 USCA § 1915 (d). The trial court concluded, as did the federal court, that appellant's claims were frivolous and further determined that there existed a complete absence of any justiciable issue of law and fact and that the lawsuit was brought to harass appellees. Consequently, $108 in costs and $150 in attorney fees were assessed against appellant. For the reasons stated below, we affirm.

Pursuant to Brown v. Diaz, 184 Ga. App. 409 (3) (361 SE2d 490) (1987), appellant's federal cause of action brought in forma pauperis under 42 USCA § 1983 is controlled by federal law. "Under 28 USCA § 1915 (d), a trial court may dismiss a case if it is ``satisfied that the action is frivolous or malicious.'" Id. Upon a review of the record and a consideration of the types of violations asserted by appellant, "we are in agreement with the trial court that appellant's claim of injury was insufficient to amount to a constitutional deprivation and was properly dismissed as frivolous." Id. See Harris v. Menendez, 817 F2d 737 (11th Cir. 1987).

We also agree with the trial court's decision to assess attorney fees against appellant under OCGA § 9-15-14. A federal court had already determined these issues to be frivolous. The record supports the court's determinations that there was no justiciable issue of law and fact and that the suit was brought to harass appellees. Despite appellant's indigent status, the award was proper. Newsome v. Graham, 254 Ga. 711, 712 (334 SE2d 183) (1985).

Judgment affirmed. Banke, P. J., and Birdsong, P. J., concur.