     Case: 09-20431     Document: 00511023216          Page: 1    Date Filed: 02/09/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 9, 2010

                                     No. 09-20431                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DALE ALLEN HAMER,

                                                   Plaintiff - Appellant
v.

WARDEN JAMES JONES; ROBERT TREON, Director; DOOS WALDRON,
Assistant Director; DEBORAH HARDMAN, Segregation Officer; FERNATER
SMITH, Property Officer; SUSAN RIVAS, Grievance Officer; OFFICER
COOK; SECOND OFFICER, Name Unknown,

                                                   Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-2417


Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Dale Allen Hamer (“Hamer”), Texas prisoner # 2757273, appeals the
district court’s dismissal of his pro se, in forma pauperis 42 U.S.C. § 1983
complaint alleging invasion of his privacy rights, excessive use of force, and
denial of due process in violation of the Fourth, Eighth, and Fourteenth


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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Amendments to the United States Constitution, respectively. The district court
dismissed Hamer’s case under 28 U.S.C. § 1915A for failure to state a claim upon
which relief can be granted. We AFFIRM IN PART and REVERSE IN PART.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       Hamer is presently incarcerated in the CT Terrell Unit of the Texas
Department of Criminal Justice Correctional Institutions Division, where he
remains in custody. His complaint in the instant suit arises from allegations
regarding a cross-sex strip search, excessive use of force, and theft of property
during his confinement.
       During a unit-wide lockdown on May 8, 2008, all of the inmates in Hamer’s
dormitory were ordered to pack their property and report to the Terrell Unit
gymnasium for a routine semi-annual shakedown. When he arrived at the gym,
Hamer was ordered to submit to a strip search by two female officers in violation
of prison policy, which precludes inmate searches by officers of a different
gender.    During or after the strip search,1 Hamer protested, and Regional
Director Robert Treon ordered him to be placed in handcuffs. He was escorted
by two officers to the infirmary for a pre-hearing detention physical in
preparation for disciplinary proceedings. Hamer reports that, while escorting
him to the infirmary, Officer Randall Cook was “abusive” towards him and
squeezed his arm too tightly. Hamer contends that, when he complained about
Officer Cook’s conduct, Officer Cook attacked him. Hamer claims that Officer
Cook and another “John Doe Officer,” identified as Officer Derek Dennis, used

       1
         The record is unclear as to whether Hamer was ever subjected to a strip search. Most
of the record suggests Hamer was never searched by the female guards. Still, one inmate
affidavit, the paragraph of the more definite statement addressing Director Treon, and the
appellate briefing all state that Hamer was strip searched by female guards. For example, the
affidavit from a fellow inmate specifically states: “I witnessed offender Hammer [sic] being
forced to strip nude in front of a female officer in the main hallway, without the aid of cover
from her eyes.” Liberally construing the pleadings and resolving all disputes in Hamer’s favor,
then, we must assume Hamer was in fact searched by the female guards. See Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000)

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excessive force to slam Hamer against the wall while holding him by the throat.
The officers then forced him onto the floor. Hamer was subsequently charged
with a disciplinary violation for creating a disturbance that disrupted unit
operations.
       As a result of this alleged assault by Officers Cook and Dennis, Hamer was
injured and taken to the hospital. Hamer claims that he suffered head and neck
injuries. Hamer states in his pleadings that he still suffers from dizziness,
blurred vision, blackouts, and pain stemming from the May 8, 2008 incident.
       Hamer was eventually convicted of the disciplinary charges that were
lodged against him as a result of the May 8, 2008 disturbance. Hamer also
alleges that, while he was in segregated confinement, certain items (a fan and
a pair of headphones) were stolen from his personal property.
       Hamer sued Officer Cook and Officer Dennis for using excessive force
against him. Hamer sued Segregation Officer Deborah Hardman, Property
Officer Fernater Smith, and Grievance Officer Susan Rivas for stealing his
personal property or covering up the “theft” that property. Hamer also sued
several supervisory officials, including Terrell Unit Warden James Jones,
Regional Director Robert Treon, and Assistant Regional Director Doos Waldron
in connection with the cross-sex strip search, use of force, and the theft of his
property. Hamer sought compensatory and punitive damages.
       The district court sought and received a more definite statement of claim
from Hamer and a Martinez report2 from the Texas Attorney General to assist
in the court’s preliminary Prison Litigation Reform Act review of Hamer’s case.
After receiving both supplements, the district court dismissed Hamer’s


       2
         This court has adopted the procedure used in Martinez v. Aaron, 570 F.2d 317 (10th
Cir. 1978), as a tool by which an administrative record is constructed to assist in assessing
prisoner litigation under 28 U.S.C. § 1915. See Norton v. Dimazana, 122 F.3d 286, 292-93 (5th
Cir. 1997). The resulting administrative record is commonly referred to as a “Martinez
report.”

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complaint with prejudice for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915A. Hamer timely appealed.
                         II. STANDARD OF REVIEW
      This case is governed by the Prison Litigation Reform Act (the “PLRA”).
Under the PLRA, a prisoner’s civil rights complaint should be dismissed if it is
frivolous, malicious, or fails to state a claim upon which relief may be granted.
28 U.S.C. § 1915A(b)(1). We review de novo a district court’s § 1915A dismissal
for failure to state a claim. See Ruiz v. United States, 160 F.3d 273, 275 (5th Cir.
1998).
      To avoid dismissal for failure to state a claim, a plaintiff’s complaint must
plead enough facts to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). The factual allegations must “raise a right
to relief above the speculative level . . . .” Twombly, 550 U.S. at 555. While pro
se complaints are held to less stringent standards than complaints drafted by
lawyers, “conclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to prevent a motion to dismiss.” Taylor v. Books A
Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quotation omitted).
                               III. DISCUSSION
      Hamer essentially alleges that the district court made three errors in
dismissing his 42 U.S.C. § 1983 suit under 28 U.S.C. § 1915A. First, he claims
that the district court inappropriately determined both that his alleged injuries
were de minimis and that he failed to allege malicious or sadistic conduct.
Second, he claims that he was entitled to an evidentiary hearing because the
district court engaged in credibility determinations.        Third, he implicitly
challenges the district court’s conclusion that he was not subjected to a cross-sex




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strip search violating his Fourth Amendment rights.3 We address each claim of
error in turn.
       A. Excessive Use of Force Analysis
       On appeal, Hamer argues the district court erred in two respects with
regard to Hamer’s excessive use of force claim. First, Hamer contends that the
district court impermissibly required him to show “serious or permanent injury”
to state a claim under the Eighth Amendment. Second, Hamer implicitly asserts
that the district court erred when it concluded that Hamer failed to allege that
Officers Cook and Dennis acted “maliciously and sadistically” as required by
Eason v. Holt, 73 F.3d 600, 601-602 (5th Cir. 1996) (citing Hudson v. McMillian,
503 U.S. 1, 7 (1992)).
       Hamer’s first argument is not entirely without merit. While the district
court did not demand a showing of “serious or permanent injury” as Hamer
suggests, its analysis of Hamer’s asserted harms appears to inappropriately rely
upon the Martinez report to resolve certain contradictions in the record about
the full extent of Hamer’s injuries. Hamer contends in his pleadings that he
suffered injuries to his neck, head, and ear producing lingering effects in the
form of dizziness, blurred vision, blackouts, and pain. The Martinez report
presents compelling evidence that Hamer merely suffered a bruised knee and
elbow as well as small cut on the back of his head.                  The district court’s
conclusions as to the extent of Hamer’s injuries appear to adopt the information
in the Martinez report, specifically video evidence gathered at the time of the
incident, rather than simply accepting Hamer’s allegations. We have previously
noted that a Martinez report may not be used to resolve material disputed facts


       3
         Hamer makes virtually no argument on appeal regarding the dismissal of his “theft
of property” claims. In fact, Hamer only references his theft claim tangentially when he notes
that he included a claim for “theft and confiscation of personal property” in his complaint.
Accordingly, any appeal as to that claim has been waived. Yohey v. Collins, 985 F.2d 222,
224-25 (5th Cir. 1993).

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when the report is in conflict with the pleadings or affidavits. See Hendrickson
v. Davis, 172 F. App’x 48, 48 (5th Cir. 2006) (unpublished) (citing Shabazz v.
Askins, 980 F.2d 1333, 1334-35 (10th Cir. 1992)). Nonetheless, we need not
reach this issue. Even if the district court improperly characterized Hamer’s
injuries, its ultimate ruling assumed in arguendo that any injuries Hamer
sustained met the Eighth Amendment requirements.
      Instead, the district court ultimately ruled on other grounds. Specifically,
the district court found that Hamer’s allegations did not satisfy the Hudson v.
McMillian, 503 U.S. 1 (1992), test for excessive use of force claims. In Hudson,
the Supreme Court held that “whenever prison officials stand accused of using
excessive physical force in violation of the Cruel and Unusual Punishments
Clause, the core judicial inquiry is . . . whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously and sadistically to cause
harm.” Id. at 7; see also Eason, 73 F.3d at 602-603 (stating that a plaintiff must
establish that force was maliciously and sadistically applied in order to survive
dismissal for failure to state a claim). Here, Hamer has not met his burden.
Hamer admits that he complained to the officers while being escorted down the
prison hallway and that his complaints triggered the use of force. Moreover, he
concedes he received a minor disciplinary infraction citation for his conduct.
Hamer does not allege that the officers did more than was necessary to bring
him to the floor, i.e., he makes no effort to plead facts showing that the guards’
conduct was unnecessary “to maintain or restore discipline.”
      Finally, his claimed injuries, while arguably more than de minimis, do not
demonstrate injuries that are the product of the sort of unnecessary force
described by Hudson. In short, as noted by the district court, Hamer does not
dispute that he created a disturbance and that the force used against him was
in response to that disturbance. Hamer’s own pleadings demonstrate that the
force used against him was employed solely for the purpose of maintaining

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discipline and not with a goal of impermissibly subjecting him to harm.
Accordingly, he has not alleged a cognizable injury under the Eighth
Amendment.
      B. Evidentiary Hearing
      Hamer’s second claimed error is meritless.         Hamer claims he “was
deprived of a hearing at which to present evidence in support of his allegations.”
Hamer was not entitled to any such hearing. First, Hamer’s citation to Taylor
v. Gibson, 529 F.2d 709 (5th Cir. 1976), is inapposite. In Taylor, we held that an
evidentiary hearing is required where the district court makes credibility
determinations in the process of entering a 28 U.S.C. § 1915A dismissal. Id. at
716. But the district court in the instant case made no such determination. As
discussed above, the district court correctly concluded that Hamer’s allegations
failed to make out an excessive use of force claim because he presented no
evidence or assertions suggesting the officers acted maliciously and sadistically.
With respect to Hamer’s theft of property claims, the district court dismissed on
the grounds that Hamer was required to resort to the available state law post-
deprivation remedies. Neither determination required the district court to make
a credibility determination, and, hence, no evidentiary hearing was warranted.
      Alternatively, Hamer’s appeal, when liberally construed, could be seen to
allege error in the district court’s failure to conduct a Spears hearing. See
Spears v. McCotter, 766 F.2d 179 (5th Cir.1985) (establishing courtroom hearing
as substitute for motion for more definite statement in pro se cases), overruled
on other grounds, Neitzke v. Williams, 490 U.S. 319 (1989). This argument also
fails. A district court faced with an inadequate pro se prisoner pleading has two
choices: 1) conduct a Spears hearing; or 2) request a more definite statement
from the prisoner-plaintiff by way of a questionnaire designed to “bring into
focus the factual and legal bases of [the] prisoners’ claims.” Eason v. Thaler, 14
F.3d 8, 9 (5th Cir. 1994) (quotation omitted). While it has both options at its

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disposal, the district court is not required to conduct a hearing and order the
completion of a questionnaire. Id. at 9 n.5. In the instant case, the district court
created and Hamer completed a questionnaire consisting of thirty-eight
supplemental questions.     Accordingly, Hamer was not entitled to a Spears
hearing.
      C. Right to Bodily Privacy
      Throughout the pleadings and on appeal, Hamer complains that he was
subjected to a cross-sex strip search in violation of his Fourth Amendment right
to bodily privacy. The record on this point is far from clear. At some points in
the record, Hamer clearly contends he was strip searched and then taken away
in handcuffs. At others, he seems to state he protested immediately and was
taken away before the strip search began. We must resolve this lack of clarity
in the record in favor Hamer and his claim. See Collins v. Morgan Stanley Dean
Witter, 224 F.3d 496, 498 (5th Cir. 2000). Accordingly, we assume without
deciding that Hamer was strip searched.
      A strip search of a male prisoner by a female guard in the absence of
exigent circumstances presents a colorable Fourth Amendment claim. See Moore
v. Carwell, 168 F.3d 234, 235-37 (5th Cir. 1999) (recognizing that a non-exigent
strip and cavity search of male prisoner by a female guard, could give rise to a
Fourth Amendment violation).        If Director Treon was, as Hamer alleged,
personally involved in the cross-sex search and if the search occurred under non-
exigent circumstances as Hamer alleged, then his claim may rise to the level of
a constitutional violation. Accordingly, we reverse the district court’s dismissal
with respect to Hamer’s Fourth Amendment claim against Director Treon.
                              IV. CONCLUSION
      With respect to his excessive use of force claims, Hamer has failed to
demonstrate that the injuries he endured were inflicted maliciously and
sadistically so as to violate his rights under the Eighth Amendment. Similarly,

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though Hamer correctly suggests the district court appeared to undertake
credibility determinations on his Eight Amendment claims, any such conduct on
the part of the district court did not affect its ultimate ruling and Hamer is not
entitled to an evidentiary hearing.
      Still, Hamer appears to have met the extremely low threshold required to
survive a 28 U.S.C. § 1915A sua sponte dismissal on his Fourth Amendment
claims premised upon the allegation of a cross-sex strip search. As such, this
claim should not have been dismissed sua sponte.
      Accordingly, we AFFIRM in part and REVERSE and REMAND in part.




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