Shabazz v. Lynaugh

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 29, 1992
• Docket: 92-4120
• Status: Published

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 92-4120 Summary Calendar

CURTIS SHABAZZ,

Plaintiff-Appellant,

versus

JAMES A. LYNAUGH, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas

(September 29, 1992)

Before POLITZ, Chief Judge, DUHÉ and DeMOSS, Circuit Judges.

PER CURIAM:

Curtis Shabazz, proceeding pro se and in forma pauperis,

appeals the dismissal under 28 U.S.C. § 1915(d) of his civil rights

suit. The district court found an absence of a significant injury,

a requirement under then controlling circuit precedents. Those

precedents were overruled by the intervening decision of the Supreme Court in Hudson v. McMillian.1 We vacate and remand for

reconsideration in light of Hudson.

Shabazz filed a 42 U.S.C. § 1983 suit against various

officials of the Texas Department of Criminal Justice and a

corrections officer at the Eastham Unit, complaining of excessive

force which resulted in injury to his knee and shoulder. Following

a Spears2 hearing, and determining that no significant injury was

sustained, the district court exercised the authority vested by

28 U.S.C. § 1915(d) and dismissed the in forma pauperis suit as

frivolous. Shabazz timely appealed.

In overruling this court's precedents, the Hudson Court held

that in order to establish an eighth amendment violation in an

excessive force case, the complainant need not plead and prove

significant injury as a necessary requisite for his claim.

Accordingly, we must vacate the dismissal and remand for

reconsideration in light of the teachings of Hudson. In this

1 _____ U.S. _____, 112 S.Ct. 995, 117 L.Ed.2d 156 (1992).

2 Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985). In Spears we approved the use of a limited evidentiary hearing in lieu of a written questionnaire to flesh out the factual and legal bases for pro se prisoner complaints. These hearings were recorded on audiotape, a procedure which, after transcription, produced what we implicitly approved as a sufficient appellate record. See Wesson v. Oglesby, 910 F.2d 278 (5th Cir. 1990). In the present case, as in several others previously reviewed by us including 92-4125, Sparks v. Murphy; 92-4191, Green v. Ward; 92-4183, Green v. Scott; 92-4256, Aguilar v. Terrell; 92-4205, Winn v. Turner; 92-4298, Graves v. Russell; and 92-4233, Holman v. Reed, the hearing was recorded on videotape which is superior to the audiotape and, for Spears hearings purposes, is considered a sufficient record of the proceedings.

2 reconsideration the district court should look to: the extent of

the injury suffered; the need for application of force; the

relationship between that need and the amount of force used; the

threat reasonably perceived by responsible officials; and any

efforts made to temper the severity of a forceful response.

Hudson.3

VACATED and REMANDED.

3 _____ U.S. at _____, 112 S.Ct. at 999, 117 L.Ed.2d at 166 (citing Whitley v. Albers, 475 U.S. 312, 321, 106 S.Ct. 1078, 1085, 89 L.Ed.2d 251, 261-62 (1986)).