Ronald L. Tsosie v. Michael Garrett

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 29, 2010
No. 09-16439 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 09-00435-CV-OC-10GRJ
RONALD L. TSOSIE,
Plaintiff-Appellant,
versus
MICHAEL GARRETT, Warden
FNU SCOTT,
S.I.A. Lieutenant,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(November 29, 1010)
Before TJOFLAT, WILSON and FAY, Circuit Judges.
PER CURIAM:
Ronald L. Tsosie is a federal prison inmate. Proceeding pro se, he brought
this Bivens1 action against the Warden and a Lieutenant at FCC Coleman claiming
that they failed to inform him that they had received information that other inmates
were out to get him, and that such failure violated his Fifth Amendment right to
protection of life and liberty, his Eighth Amendment right against cruel and
unusual punishment, his Fifth Amendment right to equal protection of the law, his
rights under the Indian Civil Rights Act, Navajo Treaty of 1868, and 8 U.S.C.
§ 1401(b).2
The district court, acting sua sponte, noting that Tsosie failed to allege any
physical injury, a requirement for relief under 42 U.S.C. § 1997e(e), dismissed his
suit under § 1997e(e) and, alternatively, under the Prison Litigation Reform Act
(“PLRA”), 28 U.S.C. § 1915(e)(2)(B)(i), on the ground that the Bivens claim was
frivolous. Tsosie now appeals the court’s ruling.
We review a dismissal under § 1915(e)(2)(B) de novo, accepting the
allegations in the complaint as true. See Douglas v. Yates, 535 F.3d 1316, 1319-20
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Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91
S.Ct. 1999, 29 L.Ed.2d 619 (1971).
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Tsosie also raises an additional claim under 18 U.S.C. § 4042. Because he did not
present the claim to the district court, we do not consider it. See Access Now, Inc., v. Southwest
Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004) (holding that we will not consider issues not
raised in the district court and raised for the first time in an appeal).
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(11th Cir. 2008) (addressing dismissal for failure to state a claim under
§ 1915(e)(2)(B)(ii)). Although the standards that govern a dismissal under Federal
Rule of Civil Procedure 12(b)(6) apply, we construe pro se pleadings liberally. Id.
at 20 . Dismissal is required if the facts as pled do not state a “plausible” claim for
relief. Ashcroft v. Iqbal, 556 U.S. ___, ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). Under the PLRA, a case should be dismissed if the action or appeal
“is frivolous or malicious.” 28 U.S.C. § 1915(e)(2)(B)(i).
Pursuant to the PLRA, “[n]o Federal civil action may be brought by a
prisoner confined in a jail, prison, or other correctional facility, for mental or
emotional injury suffered while in custody without a prior showing of physical
injury.” 42 U.S.C. § 1997e(e). Thus, when a lawsuit involves a mental or
emotional injury, § 1997e(e) requires a showing of physical injury in order for the
plaintiff to make out a case. Napier v. Preslicka, 314 F.3d 528, 531-32 (11th Cir.
2002).
The Eighth Amendment imposes a duty on prison officials “to protect
prisoners from violence at the hands of other prisoners.” Rodriguez v. Sec’y for
Dep’t of Corr., 508 F.3d 611, 616-17 (11th Cir. 2007) (quotation omitted). Prison
officials may be held liable under the Eighth Amendment when they are
deliberately indifferent to the substantial risk of serious harm to inmates. Marsh v.
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Butler Cnty, Ala., 268 F.3d 1014, 1027 (11th Cir. 2001) (en banc). They must be
aware of a substantial risk of serious harm to the inmates and not take reasonable
measures to alleviate that risk. Id. Under traditional tort principles, to hold
defendants liable for a constitutional tort, the plaintiff must show injury or damage.
Rodriguez, 508 F.3d at 626 (holding that to establish damages for a constitutional
tort, the defendants must have either caused or proximately caused the alleged
injuries and damages).
The district court did not err in dismissing with prejudice Tsosie’s complaint
as frivolous under § 1915(e)(2)(B)(i) because the complaint does not allege that
Tsosie suffered any physical injuries and could not have suffered any mental or
emotional injuries because he was safely in protective custody before he began to
suspect that the defendants knew of prior threats against him. Therefore, viewing
the complaint’s allegations as true, his constitutional claims under the Fifth and
Eighth Amendments fail because the defendants’ failure to notify him of threats
did not cause him any injury, and thus, there is no plausibility that he is entitled to
relief. In addition, provisions under the Indian Civil Rights Act, the Navajo Treaty
of 1868, and 8 U.S.C. § 1401(b) do not relate to Tsosie’s claims against the
defendants, and thus, those claims are frivolous. Moreover, even if arguendo
Tsosie suffered mental or emotional injuries, he did not allege that he suffered any
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physical injuries, which is a requirement for relief for mental or emotional injuries
suffered while an inmate is in custody under § 1997e(e).
AFFIRMED.
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