Opinion
4:05-3341-HHF-TER.
December 22, 2005
Report and Recommendation
This is a civil rights action filed by a county detainee pro se. At the time he filed this case, Plaintiff was being detained on unknown charges at the Sumter-Lee Regional Detention Center. He sues several employees/officials of the detention for alleged "disgrace" and violation of his "constitutional rights." See Statement of Assets, answer to question 2. Plaintiff claims that at least three of the Defendants have been spreading a false rumor around the detention that Plaintiff has "aids." He claims that Defendants have "scandalized [his] name and Disgraceful [him] by putting [him] in a situation were inmate and officer are saying that [he has] Aids." Complaint, relief section. Plaintiff seeks to have Defendants Lawson, Wiley, and Dinkins fired from their jobs and seeks damages in the amount of $50,000 for alleged "pain and suffering." Id.
Pursuant to 28 U.S.C. § 636(b)(1), and Local Rule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial matters in such pro se cases and to subm it findings and recomm endations to the District Court. See also 28 U.S.C. §§ 1915(e); 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal).
It is assum ed that Plaintiff means that they are telling people that he has the disease commonly referred to as "HIV-AIDS."
Pro Se Review
Under established local procedure in this judicial district, a careful review has been made of Plaintiff's pro se Complaint filed in this case. This review has been conducted pursuant to the procedural provisions of 28 U.S.C. §§ 1915, 1915A, and the Prison Litigation Reform Act of 1996, and in light of the following precedents: Denton v. Hernandez, 504 U.S. 25 (1992);Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); Haines v. Kerner, 404 U.S. 519 (1972); Nasim v. Warden, Maryland House of Correction, 64 F.3d 951 (4th Cir. 1995) ( en banc); Todd v. Baskerville, 712 F.2d 70 (4th Cir. 1983); and Boyce v. Alizaduh, 595 F.2d 948 (4th Cir. 1979).Pro se complaints are held to a less stringent standard than those drafted by attorneys, see Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), and a federal district court is charged with liberally construing a complaint filed by a pro se litigant to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 n. 7 (1980);Cruz v. Beto, 405 U.S. 319 (1972). When a federal court is evaluating a pro se complaint, the plaintiff's allegations are assumed to be true. See Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975). Nevertheless, the requirement of liberal construction does not mean that this Court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. See Weller v. Department of Social Servs., 901 F.2d 387(4th Cir. 1990). Even under this less stringent standard, however, the Complaint filed in this case is subject to summary dismissal under the provisions of 28 U.S.C. § 1915(e)(2)(B).
Discussion
Plaintiff's Complaint fails to state a viable claim for damages and/or other relief for constitutional violations pursuant to 42 U.S.C. § 1983. There is no civil rights action for slander. See Johnson v. Barker, 799 F.2d 1396, 1399 (9th Cir. 1986); see also Hollister v. Tuttle, 210 F.3d 1033 (9th Cir. 2000). It is well settled that "the use of vile and abusive language is never a basis for a civil rights action." Sluys v. Gribetz, 842 F. Supp. 764, 765 n. 1 (S.D.N.Y. 1994). Hence, even if true, the spreading of a rumor against him that Plaintiff finds "disgraceful" is not actionable under 42 U.S.C. § 1983. See Morrison v. Martin, 755 F. Supp. 683, 687 (E.D.N.C. 1990) ("The subjection of a prisoner to verbal abuse or profanity does not arise to the level of a constitutional deprivation."); see also Batista v. Rodriguez, 702 F.2d 393, 398 (2d Cir. 1983); Malsh v. Austin, 901 F. Supp. 757 (S.D.N.Y. 1995) ("Verbal assault, standing alone, is not a judicially cognizable injury in a § 1983 civil rights action.").
Section 1983 is the procedural mechanism through which Congress provided a private civil cause of action based on allegations of federal constitutional violations by persons acting under color of state law. See Jennings v. Davis, 476 F.2d 1271 (8th Cir. 1973). The purpose of § 1983 is to deter state actors from using badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails. See McKnight v. Rees, 88 F.3d 417(6th Cir. 1996) (em phasis added).
Furthermore, other than having his feeling upset and hurt, Plaintiff does not allege any type of injury arising from the alleged rumor. Plaintiff cannot recover damages for emotional pain and suffering. Case law prior to the adoption of the Prison Litigation Reform Act had held that there is no federal constitutional right to be free from emotional distress, psychological stress, or mental anguish, and, hence, there is no liability under § 1983 regarding such claims. See Rodriguez v. Comas, 888 F.2d 899, 903 (1st Cir. 1989); Grandstaff v. City of Borger, 767 F.2d 161 (5th Cir. 1985). The Prison Litigation Reform Act itself provides that physical injuries are a prerequisite for an award of damages for emotional distress under 42 U.S.C. § 1983. See 42 U.S.C. § 1997e(e); Zehner v. Trigg, 133 F.3d 459 (7th Cir. 1997).
Recommendation
Accordingly, it is recommended that the District Court dismiss the Complaint in this case without prejudice and without issuance and service of process. See Denton v. Hernandez;Neitzke v. Williams; Haines v. Kerner; Brown v. Briscoe, 998 F.2d 201, 202-04 n. * (4th Cir. 1993); Boyce v. Alizaduh; Todd v. Baskerville, 712 F.2d at 74; see also 28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A (as soon as possible after docketing, district courts should review prisoner cases to determine whether they are subject to summary dismissal). Plaintiff's attention is directed to the important notice on the next page.