Summary Calendar CHARLES YOUNG v. Gary Saint

*Local Rule 47.5 provides: "The publication of opinions that have no precedential value and
merely decide particular cases on the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession." Pursuant to that Rule, the court has
determined that this opinion should not be published.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 92-8420
Summary Calendar
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CHARLES YOUNG,
Plaintiff-Appellant,
v.
GARY SAINT et al.,
Defendants-Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
W 92 CA 138
_________________________________________________________________
March 31, 1993
Before KING, DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Charles Young, a state prisoner incarcerated in the Alfred Hughes Unit of the Texas
Department of Criminal Justice, Institutional Division (TDCJ-ID), filed a civil rights action against
various prison officials pursuant to 42 U.S.C. § 1983. A federal magistrate dismissed the
complaint as frivolous pursuant to 28 U.S.C. § 1915(d). Believing it had the option to decline to
entertain an intermediate appeal from the magistrate's dismissal, in view of an agreement by the
parties to appeal the magistrate's order directly to the Court of Appeals, see 28 U.S.C. §

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636(c)(3), the district court ordered Young to appeal directly to this Court. Young subsequently
appealed to this court in a timely fashion. We affirm the magistrate's order dismissing Young's
complaint pursuant to § 1915(d).
I.
Because this case was dismissed as frivolous following a Spears hearing conducted by the
magistrate, see Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985), we must, for purposes of
appellate review of the dismissal, accept all remotely plausible factual allegations in Young's
complaint as well as those undisputed facts developed at the Spears hearing. However, once we
accept those facts, we review the lower court's dismissal for frivolity under an abuse-of-discretion
standard. See Denton v. Hernandez, 112 S. Ct. 1728, 1734 (1992); Parker v. Fort Worth Police
Dept., 980 F.2d 1023, 1024 (5th Cir. 1993).
On February 17, 1992, Young, an African-American inmate, was waiting in the serving line at
the prison cafeteria. A number of inmates in front of Young -- who were also African-Americans
-- complained about the fitness of the chicken being served. The server, who was white,
permitted at least one inmate, who was also white, to pick and choose among the pieces of
chicken. That inmate was permitted to serve himself directly from the tray. When Young came
to the chicken serving tray, he was told by the same server, Corrections Officer Gary Saint, that
Young, too, could choose among the pieces of available chicken and serve himself. When Young
reached, fork in hand, into the serving tray, Officer Saint struck Young across the hand with a
metal spatula that Saint had been using to serve cornbread. Saint also used "profanity" in
addressing Young, including stating "you damn inmate." No racial slurs were used. It is
undisputed that a prison official serving food to inmates would violate internal TDCJ-ID policy by
inflicting any type of corporeal punishment on an inmate who reaches into a serving tray, with or
without authorization.
Officer Saint's blow drew an undetermined amount of blood and left two small "scratches" on
Young's hand, according to undisputed prison medical records introduced at the Spears hearing.

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X-rays of Young's hand contained in those undisputed prison medical records also reveal that no
bones in Young's hand were fractured, although a "slight decrease in flexion and extension" of
Young's fingers was noted a few days after the injury occurred.
Within fifteen to thirty minutes of the injury, Young was taken to the prison infirmary, where
his hand was examined. The "scratches" were cleansed, antibiotic ointment and a band-aid were
applied, and Young was returned to his cell. Young's request for prescription pain killer was
denied; he was instead given an over-the-counter strength pain reliever. Despite repeated
complaints about soreness in his hand, Young was forced to engage in manual labor during the
following days. II.
Young has sued a variety of prison officials in addition to Officer Saint -- including Jack
Garner, Senior Warden at the Hughes Unit; James Collins, Director of TDJC-ID; Vandagriff
O'Bryan and Norman Erekson, Building Captains at the Hughes Unit; and Ted Brock, a security
guard at the Hughes Unit. Young also advances a variety of constitutional and statutory claims,
including alleged § 1983 violations of his rights under the First, Fourth, Fifth, Sixth, Eighth, and
Fourteenth Amendments to the United States Constitution. Young also raises pendent claims
under analogous provisions of the Texas Constitution.
Young's brief on appeal, however, only address the merits of the following claims: whether
Young's Eighth and Fourteenth Amendment rights were violated by i) Officer Saint's conduct; ii)
failure of Saint's superiors to properly train him; iii) the alleged "deliberate indifference" of other
prison officials at the Hughes Unit in failing to treat Young's wounds in a timely manner; and iv)
the conduct of other prison officials at the Hughes Unit in requiring Young to return to work in
the days following his injury. We need not address the remainder of Young's conclusory claims.
United States v. Beaumont, 972 F.2d 553, 563 (5th Cir. 1992) ("Failure of appellant to properly
argue or present issues in an appellate brief renders those issues abandoned.").
The magistrate dismissed Young's entire complaint as frivolous, holding that it "lack[ed] an
arguable basis in law or fact." See Neitzke v. Williams, 490 U.S. 319, 325 (1989). The

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magistrate specifically held that any injury sustained by Young was a result of Officer Saint's de
minimis use of force, which is not an actionable Eighth Amendment claim. See Hudson v.
McMillian, 112 S. Ct. 995, 1000 (1992). The magistrate also held that Young's allegation of
racial discrimination by Officer Saint and Young's claim of "deliberate indifference" by prison
officials to Young's injuries were frivolous. Consequently, the magistrate reasoned, all of Young's
other claims failed. Alternatively, the magistrate held that Young's entire complaint failed because
it did not meet the "heightened pleading requirement" regarding qualified immunity, which was
announced by this court in Elliot v. Perez, 751 F.2d 1472, 1479 (5th Cir. 1985).
Before addressing the magistrate's ruling, we must determine whether the district court erred
by refusing to entertain Young's intermediate appeal from the magistrate's dismissal. The district
court recognized that it had jurisdiction to hear Young's appeal, notwithstanding Young's prior
written stipulation that he would appeal directly to this court, see 28 U.S.C. § 636(c)(3), because
the defendants failed to object to Young's appeal to the district court; however, the district court
"declined . . . the opportunity" to reach the merits and stated that "Plaintiff should file his notice
of appeal with the Fifth Circuit Court of Appeals." We believe that the district erred by
summarily rejecting Young's intermediate appeal. We have held that a district court has
jurisdiction over a magistrate's order even though a § 636(c)(3) waiver has been signed by the
appellant, so long as the appellee does not object to the intermediate appeal to the district court.
See Rhome v. Sullivan, 963 F.2d 691 (5th Cir. 1992). As the district court correctly observed,
the defendants in the instant case did not object to Young's intermediate appeal to the district
court. Thus, the district court had no legitimate reason not to comply with it judicial duty to
reach the merits of Young's intermediate appeal that was properly before it. In the interest of
judicial efficiency, though, we see no need to remand to the district court for further proceedings
because we agree with the magistrate that Young's complaint is frivolous.
As the Court held in Hudson, there is no actionable Eighth Amendment violation when the
injuries suffered by a prisoner are the result of a de minimis use of force that is not "repugnant to

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2 Accordingly, Young's concomitant Eighth Amendment claims regarding the alleged failure of
prison officials to properly supervise Saint and prison officials' requirement that Young engage in
manual labor with a slightly injured hand fail as well.
3 We see no need to address the magistrate's alternative holding that Young's civil rights
complaint did not meet the "heightened pleading requirement" regarding qualified immunity
announced by this court in Elliot v. Perez, 751 F.2d at 1479; but cf. Leatherman v. Tarrant
County Narcotics Intelligence and Coordination Unit, 1993 WESTLAW 52174, 61 U.S.L.W.
4205 (U.S. March 3, 1993). Likewise, we see no need to address Young's complaints about
alleged procedural irregularities that occurred during the magistrate's Spears hearing. For obvious
reason, we also deny Young's request, pursuant to Rule 50(a) of the Federal Rules of Civil
Procedure, that we render judgment as a matter for law in his favor on appeal.
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the conscience of mankind." See 112 S. Ct. at 1000. We believe that Young's injuries were the
result of a de minimis use of force by Officer Saint, which was not "repugnant to the conscience
of mankind." Cf. Jackson v. Culbertson, 1993 U.S. App. LEXIS 4147 (5th Cir. March 4, 1993)
(prison guard's spraying prisoner with fire extinguisher de minimis use of force not repugnant).
Thus, Young's claim of cruel and unusual punishment inflicted by Officer Saint is frivolous under
28 U.S.C. § 1915(d).2
We also agree that there is no basis in law or fact for Young's claim of race discrimination by
Officer Saint. At best, Young has raised a type of disparate impact claim -- based on preferential
treatment given to a single white inmate -- which is not a viable Equal Protection claim. See
Washington v. Davis, 426 U.S. 229 (1976). Furthermore, we agree that the fifteen to thirty
minute delay before Young's scratches were treated was not "deliberate indifference to serious
medical needs" by prison officials, so as to rise to the level of an Eighth Amendment violation.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976).3
Finally, we must address Young's argument that the district court erred by failing to permit
Young to amend his complaint. We note that "a pro se plaintiff . . . should be permitted to amend
his pleadings when it is clear from his complaint that there is a potential ground for relief."
Gallegos v. State of Louisiana, 858 F.2d 1091, 1092 (5th Cir. 1988). We review the district
court's refusal to permit a pro se complainant to amend his pleadings for an abuse of discretion.
See James by James v. Sadler, 909 F.2d 834, 836 (5th Cir. 1990). Because Young's lengthy

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unamended complaint and the undisputed facts developed at the Spears hearing made it clear that
there was no potential merit in any of Young's claims, we believe that the district court did not
abuse its discretion.
III.
For the foregoing reasons, we AFFIRM the magistrate's dismissal of Young's complaint as
frivolous.

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