                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   September 30, 2005
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-41382
                                      Summary Calendar



       JOSE YBARRA DOMINGUEZ,

                                                           Plaintiff-Appellant,

                                             versus

       KEVIN MOORE; ET AL.,

                                                           Defendants,

       KEVIN MOORE; JOHN MOORE; JOHN DOE;
       JOHN DOES, 21-30, Correctional Officers,

                                                           Defendants-Appellees.


                    Appeal from the United States District Court for
                             the Eastern District of Texas
                              (USDC No. 6:04-CV-245)
           _________________________________________________________


Before REAVLEY, DAVIS and PRADO, Circuit Judges.

PER CURIAM:*




       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
       Jose Ybarra Dominguez, Texas prisoner # 833815 proceeding in forma pauperis,

appeals from the dismissal of his 42 U.S.C. § 1983 complaint pursuant to 28 U.S.C. §

1915(e)(2)(B)(i) and (ii) for frivolity and for failure to state a claim, respectively,

following a Spears hearing. See Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

Reviewing the dismissal as frivolous for an abuse of discretion and the dismissal for

failure to state a claim de novo, we reverse the district court’s judgment for the following

reasons:

       1.     An in forma pauperis (IFP) complaint may be dismissed as frivolous under

              § 1915(e)(2)(B)(i) if it lacks an arguable basis in law or fact, i.e., “if it is

              based on an indisputably meritless legal theory, such as if the complaint

              alleges the violation of a legal interest which clearly does not exist.” Siglar

              v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citations omitted). An

              IFP complaint may be dismissed under § 1915(e)(2)(B)(ii) for failure to

              state a claim only if, assuming plaintiff's factual allegations are true, it

              appears that no relief could be granted under any set of facts that could be

              proven consistent with the allegations. See Harris v. Hegmann, 198 F.3d

              153, 156 (5th Cir. 1999).

       2.     “To succeed on an excessive force claim [under 42 U.S.C. § 1983], a

              plaintiff bears the burden of showing (1) an injury (2) which resulted

              directly and only from the use of force that was excessive to the need and

              (3) the force used was objectively unreasonable.” Glenn v. City of Tyler,

                                               2
     242 F.3d 307, 314 (5th Cir. 2001) (internal quotation marks omitted).

     Under this standard, Dominguez’s complaint has an arguable basis in law

     and, assuming his factual allegations are true, states a claim upon which

     relief can be granted.

3.   Dominguez has alleged an injury that is more than de minimis as required

     to survive dismissal of his excessive force complaint as frivolous. Id.

     Dominguez’s complaint alleged that, because of the refusal to loosen his

     handcuffs, his hands became “grossly swollen” and “painful,” with deep

     cuts appearing “around both wrists where the handcuffs were embedded

     into his flesh.” He further alleged that he has permanent scarring and “now

     suffers from nerve injury . . . caused by the long-term wearing of over-tight

     handcuffs and the black box.” The district court erred in holding that

     Dominguez must show that he suffered a significant injury in order to

     proceed on his IFP complaint. See id. (recognizing that injury is no longer

     required to be significant in the context of an excessive force claim).

4.   Dominguez’s medical records were improperly used at the Spears hearing

     to counter his injury allegations because the records did not show those

     allegations to be implausible. See Williams v. Luna, 909 F.2d 121, 124

     (5th Cir. 1990) (holding that reliance on a prisoner’s medical records to

     refute his testimony is improper unless such records indicate his allegations

     of injury are inherently implausible).

                                    3
5.   Dominguez’s complaint alleged that the force used against him was

     excessive to the need and objectively unreasonable. We have held that

     determination of excessive force includes consideration of the need for the

     application of force, the relationship between the need and the amount of

     force used, the threat reasonably perceived by the responsible officials, and

     any efforts made to temper the severity of a forceful response. Gomez v.

     Chandler, 163 F.3d 921, 923 (5th Cir. 1999). Dominguez alleged that (1)

     prisoners taken to outside hospitals were not usually shackled to their beds

     with five-point restraints and a black box as he was, (2) while he was at the

     hospital he was under constant security by two correctional officers, one of

     whom was armed, limiting the need for restraint, (3) he had been restrained

     for seven consecutive days, part of which time he was in a coma, before an

     effort was made to temper the severity of the force used; and (4) the black

     box was ultimately removed for the final three days of his hospital stay.

6.   We have also recognized that the use of restraints for punitive purposes is

     violative of the Constitution. See Fulford v. King, 692 F.2d 11, 14-15 (5th

     Cir. 1982) (holding that the eighth amendment’s prohibition against cruel

     and unusual punishment is implicated when handcuffs or restraints are used

     to subject a prisoner to “great pain” either “deliberately, as punishment, or

     mindlessly, with indifference to the prisoner’s humanity”). Dominguez’s

     complaint specifically alleged that his black-box handcuffs were ordered to

                                    4
         be affixed “extra tight”to punish him both for his crime and for allegedly

         exposing himself to the hospital nurses. Dominguez further alleged that the

         correctional officers deliberately tightened the handcuffs back into existing

         wounds after the cuffs were loosened for feeding. He also alleged that the

         correctional officers refused to uncuff him to allow use of the toilet or bath,

         laughing and joking that Dominguez had to urinate and defecate in his

         hospital bed.

    7.   The district court’s judgment of dismissal is reversed and this case is

         remanded for further proceedings consistent with this opinion.

REVERSED AND REMANDED.




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