Session v. Giannotti

Case: 23-10010 Document: 00516783598 Page: 1 Date Filed: 06/12/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10010
____________ FILED
June 12, 2023
Tujuan Estaisyo Session, Lyle W. Cayce
Clerk
Plaintiff—Appellant,
versus
FNU Giannotti, Texas Department of Criminal Justice Robertson Unit
Employee; FNU Haines, Texas Department of Criminal Justice Robertson
Unit Pill Nurse; FNU Cano, Texas Department of Criminal Justice Unit
Assistant Warden; J. Lopez, Texas Department of Criminal Justice
Robertson Unit Assistant Warden; FNU Reyes, Texas Department of
Criminal Justice Robertson Unit Grievance Staff,
Defendants—Appellees.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:20-CV-116
______________________________
Before Higginbotham, Stewart, and Willett, Circuit Judges.
Per Curiam: *
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10010 Document: 00516783598 Page: 2 Date Filed: 06/12/2023
No. 23-10010
Tujuan Estaisyo Session, Texas prisoner # 1714978, moves to proceed
in forma pauperis (IFP) on appeal following the magistrate judge’s dismissal 1
of his 42 U.S.C. § 1983 claims as frivolous and for failing to state a claim upon
which relief may be granted pursuant to 28 U.S.C. §§ 1915A and
1915(e)(2)(B). He also now moves this court to order the production certain
documents that he asserts support his § 1983 claims and to amend the caption
to add certain individuals as defendants-appellees.
In his § 1983 complaint, Session alleged that defendants used
excessive force against him and were deliberately indifferent to his serious
medical needs in violation of the Eighth Amendment. He also alleged that
defendants violated his due process rights by failing to properly investigate
his grievances. His claims stemmed from an incident during which one of the
defendants spat on him and joked afterwards that he gave Session
coronavirus. Session alleged that he later suffered injuries—a bad cold and
pink eye—from the incident.
By moving to proceed IFP, Session is challenging the magistrate
judge’s certification decision that his appeal is not taken in good faith. See
Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into whether
the appeal is taken in good faith “is limited to whether the appeal involves
legal points arguable on their merits (and therefore not frivolous).” Howard
v. King, 707 F.2d 215, 220 (5th Cir. 1983) (internal quotation marks and
citation omitted).
In the order dismissing Session’s complaint, upon which the
certification decision was based, the magistrate judge assumed that even if it
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1
The magistrate judge’s order is a final, appealable order over which we have
jurisdiction, as Session unambiguously consented to the authorization of the magistrate
judge to conduct proceedings and enter final judgments in accordance with 28 U.S.C.
§ 636(c)(1).
2
Case: 23-10010 Document: 00516783598 Page: 3 Date Filed: 06/12/2023
No. 23-10010
was plausible that Session sustained physical injuries as a result of the
incident, Session could not show a nonfrivolous issue regarding whether his
injuries, a three-day-long cold and a case of pink eye, were more than de
minimis when considered in the context of the amount of force allegedly
used, and that the officer’s use of threatening language did not amount to a
constitutional violation. Although we have never “directly held that injuries
must reach beyond some arbitrary threshold to satisfy an excessive force
claim,” Brown v. Lippard, 472 F.3d 384, 386 (5th Cir. 2006), our precedent
indicates that the claimant “must have suffered from the excessive force
more than a de minimis physical injury,” Gomez v. Chandler, 163 F.3d 921,
924 (5th Cir. 1999). And “mere threatening language and gestures of a
custodial officer do not, even if true, amount to constitutional violations.”
See McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). The magistrate
judge also concluded that Session failed to allege facts showing that he had
an objectively serious medical need that was disregarded by any prison official
or that he suffered substantial harm because of any delay in medical
treatment. See Gobert v. Caldwell, 463 F.3d 339, 346 (5th Cir. 2006); Sims v.
Griffin, 35 F.4th 945, 949 (5th Cir. 2022) (“[A] serious medical need is one
for which treatment has been recommended or for which the need is so
apparent that even laymen would recognize that care is required.” (internal
quotation marks and citation omitted)).
Session has not shown that he will raise legal points arguable on their
merits (and therefore not frivolous) on appeal with respect to these claims.
Additionally, because “any alleged due process violation arising from the
alleged failure to investigate [an inmate’s] grievances is indisputably
meritless,” Geiger v. Jowers, 404 F.3d 371 374 (5th Cir. 2005), he cannot show
that he will raise legal points arguable on their merits with respect to that
issue.
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No. 23-10010
Accordingly, because Session has not shown that his appeal will
involve a nonfrivolous issue, his motion to proceed IFP on appeal is
DENIED, and his appeal is DISMISSED as frivolous. See Baugh, 117 F.3d
at 202 n.24; Howard, 707 F.2d at 220; 5th Cir. R. 42.2. His motions for
production of documents and to amend the caption are also DENIED.
The district court’s dismissal of the suit under § 1915A(b)(1) and our
dismissal of this appeal as frivolous each count as strikes under 28 U.S.C.
§ 1915(g). See Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1724-25 (2020);
Adepegba v. Hammons, 103 F.3d 383, 388 (5th Cir. 1996), abrogated in part on
other grounds by Coleman v. Tollefson, 575 U.S. 532, 537 (2015). Session is
WARNED that if he accumulates three strikes, he will not be permitted to
proceed IFP 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 § 1915(g).
4