Brewster v. Dretke

• Decision Date: 10 November 2009
• Docket Number: No. 08-40685.,08-40685.
• Parties: James Earl BREWSTER, Plaintiff-Appellant, v. Douglas DRETKE, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

587 F.3d 764

James Earl BREWSTER, Plaintiff-Appellant, v. Douglas DRETKE, Defendant-Appellee.

No. 08-40685.

United States Court of Appeals, Fifth Circuit.

November 10, 2009.

James Earl Brewster, Angleton, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before CLEMENT, PRADO and ELROD, Circuit Judges.

PER CURIAM:

James Earl Brewster ("Brewster"), a Texas inmate proceeding pro se and in forma pauperis, appeals the district court's dismissal of his § 1983 action. For the reasons stated below, we affirm.

FACTS AND PROCEEDINGS

In his complaint, Brewster alleges that, during a shake-down of his cell, prison officials verbally abused him and confiscated his spare glass eye, a bottle of wite-out, and a Georgetown Law Journal volume borrowed from a fellow inmate. The district judge asked Brewster to submit a more definite statement of his allegations, and he complied. The district court then dismissed Brewster's complaint with prejudice as legally frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). The district court's judgment did not address Brewster's Eighth Amendment claim, however, and this court granted Brewster's application to proceed in forma pauperis on appeal.

STANDARD OF REVIEW

We review a district court's dismissal of an in forma pauperis complaint as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) for an abuse of discretion. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir.1997). A claim may be dismissed as frivolous if it does not have an arguable basis in fact or law. Gonzales v. Wyatt, 157 F.3d 1016, 1019 (5th Cir.1998).

DISCUSSION

Brewster challenges both the procedure through which the district court dismissed his claims and the merits of the district court's legal analysis. We dispense with Brewster's procedural arguments first. Brewster contends that the district judge improperly dismissed his claims before an answer was filed and without conducting a Spears hearing or allowing him to amend his complaint. He further objects that the district court failed to "provide appellant with a statement explaining the dismissal that facilitates intelligent appella[te] review," and argues that the district court improperly imposed a heightened pleading standard by requiring him to submit a more definite statement. None of these arguments has merit.

The district court may dismiss an in forma pauperis proceeding "before service of process or before the filing of the answer" as long as certain safeguards are met. Ali v. Higgs, 892 F.2d 438, 440 (5th Cir.1990). In reviewing such a dismissal, we consider, among other things, "whether the court has provided a statement explaining the dismissal that facilitates intelligent appellate review." Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992) (quotation omitted). This requires the court to examine whether an inmate's "insufficient factual allegations might be remedied by more specific pleading." Eason v. Thaler, 14 F.3d 8, 9 (5th Cir.1994). Traditionally, the "principal vehicles . . . for remedying inadequacy in prisoner pleadings are the Spears hearing and a questionnaire to bring into focus the factual and legal bases of prisoners' claims." Id. (quotation omitted). The district court used a questionnaire instead of a Spears hearing. Had the district court conducted a hearing, it may have addressed Brewster's Eighth Amendment claim. Any error in failing to hold a hearing, however, was harmless because Brewster's pleadings fail to state a claim under the Eighth Amendment, as discussed below, and because Brewster fails to show how the district court's decision prevented him from adequately presenting his other claims. Cf. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").

Generally, as Brewster argues, a pro se litigant should be offered an opportunity to amend his complaint before it is dismissed. Bazrowx v. Scott, 136 F.3d 1053, 1054 (5th Cir.1998) (per curiam) (reviewing the district court's dismissal under 42 U.S.C. § 1997(e)). Granting leave to amend is not required, however, if the plaintiff has already pleaded his "best case." Id. Brewster gives no indication that he did not plead his best case in his complaint and more definite statement. He does not state any material facts he would have included in an amended complaint. See Shope v. Texas Dep't of Criminal Justice, 283 Fed.Appx. 225, 226 (5th Cir.2008) (unpublished) ("Shope does not allege what facts he would include in an amended complaint. Therefore, Shope has not shown that the district court abused its discretion in dismissing his complaint.") (citing Ashe v. Corley, 992 F.2d 540, 542 (5th Cir.1993)); Goldsmith v. Hood County Jail, 299 Fed.Appx. 422, 423 (5th Cir. 2008) (unpublished) (affirming district court's dismissal of pro se complaint when litigant failed to "explain what facts he would have added or how he could have overcome the deficiencies found by the district court if he had been granted an opportunity to amend").¹ Brewster has therefore failed to show that the district court abused its discretion by dismissing his complaint without granting him leave to amend.

Brewster's argument that the district court imposed a heightened pleading standard by requiring him to complete a questionnaire is also misplaced. This circuit has long held that district courts may require a pro se litigant to complete a post-complaint questionnaire. See Spears v. McCotter, 766 F.2d 179 (5th Cir.1985), overruled on other grounds by Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Watson v. Ault, 525 F.2d 886 (5th Cir.1976). Indeed, the en banc court expressly affirmed this practice in an opinion that considered the proper pleading standard for pro se litigants in civil rights actions. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir.1995) (en banc). The Schultea court did not perceive a conflict between this practice and notice pleading. Brewster has given no persuasive reason to find one now.

Turning now to the district court's legal analysis, we find that the court correctly dismissed each of Brewster's claims.² Brewster's appellate brief and pleadings below mainly argue that prison officials violated his right to due process when they confiscated his property without providing him with a confiscation form, as required by prison regulations. "[A] prison official's failure to follow the prison's own policies, procedures or regulations does not constitute a violation of due process, if constitutional minima are nevertheless met." Myers v. Klevenhagen, 97 F.3d 91, 94 (5th Cir.1996) (citations omitted); see also Murphy v. Collins, 26 F.3d 541, 543 (5th Cir.1994). As the district court correctly held, constitutional due process is satisfied here because the Texas tort of conversion provides Brewster with an adequate post-deprivation remedy. Murphy, 26 F.3d at 543.

The district court was also right to dismiss Brewster's claim that he was denied meaningful access to the courts when officials confiscated the law journal and wite-out. An inmate alleging the denial of his right of access to the courts must demonstrate a relevant, actual injury stemming from the defendant's unconstitutional conduct. See Lewis v. Casey, 518 U.S. 343, 351, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). This requires the inmate to allege that his ability to pursue a "nonfrivolous," "arguable" legal claim was hindered. See Christopher v. Harbury, 536 U.S. 403, 415, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (quotation omitted). The inmate must describe the underlying claim well enough to show that its "arguable nature . . . is more than hope." Id. at 416, 122 S.Ct. 2179 (2002) (internal quotation marks omitted). Brewster wrote in his more definite statement that his research on several pending lawsuits was delayed by the law journal's confiscation and that his ability to draft pleadings was hindered by the loss of the wite-out. On appeal, Brewster argues that "he was attempting to formulate an appeal of his criminal conviction" when the law journal was confiscated. At no point in any of his pleadings does Brewster identify any issue that he would have brought in his criminal appeal or other suit if the law journal had not been taken from him. This omission is fatal to his claim. See Id.

Finally, Brewster argues that his Eighth Amendment right to be free from cruel and unusual punishment was violated when prison officials confiscated his spare glass eye. Courts in this circuit and others have found Eighth Amendment violations when prison officials deprive an inmate of a needed medical prosthesis or other device. See, e.g., Johnson v. Hardin County, 908 F.2d 1280, 1283-84 (6th Cir. 1990) (defendant's refusal to provide inmate with crutches supported jury's finding of Eighth Amendment violation); Newman v. Alabama, 503 F.2d 1320, 1331-32 (5th Cir.1974) (unavailability of eyeglasses and prosthetic devices, inter alia, in state penal system warranted findings of constitutional inadequacy under either the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment). The district court did not address Brewster's Eighth Amendment argument, but any error was harmless because Brewster's allegations fail "`to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).³

Prison officials violate the Eighth Amendment when they demonstrate deliberate indifference to a prisoner's serious medical needs constituting an unnecessary and wanton infliction of pain. Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). Deliberate indifference is an "extremely high"...