Opinion
CAUSE NO. 3:05-CV-376 RM.
July 25, 2005
OPINION AND ORDER
Robert L. McFarland, a pro se prisoner, submitted a second motion to correct error which the court construes pursuant to FED. R. CIV. P. 59. Mr. McFarland says the court misunderstood his complaint and he illuminates a claim that was not otherwise distinct in his complaint.
Retaliation is not the issue, and what the issue is — is the fact that Linda Wachs "the defendant", threatened Robert McFarland "Plaintiff with the lost of his job, and a conduct report if he was to write a grievance on her, and that alone is a criminal act called Blackmail.
Motion at 1, docket # 11 (emphasis in original). Originally the court analyzed this as a retaliation claim and viewed the threatening remarks merely as supporting evidence of intent. Now Mr. McFarland states that retaliation is not the issue and that the focus should be placed on these remarks as an independent claim.
Taken separately as an independent claim, these threats are, at most, verbal abuse and harassment, which does not state a claim under § 1983. DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000) ("Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws.") Telling him that he would be fired if he filed a grievance did not violate his constitutional rights.
Separately, Mr. McFarland asserts that he does have a retaliation claim because he requested a grievance form on May 2nd which he filed on May 3rd. He states that he also filed another grievance on May 6th. The addition of the May 3rd grievance does not change the court's previous analysis. Mr. McFarland was fired on May 2nd, but he did not file a grievance until May 3rd. Because the grievance was not filed until after he was fired, it could not have been a substantial or motivating factor in the decision to fire him. As discussed in the previous order, his verbal threats on May 2nd to file a grievance were not protected by the First Amendment. So too, his written request on May 2nd for a form is nothing more than a written version of his earlier verbal remarks. The analysis of his written request is not different than the analysis of his earlier verbal comments.
The facts presented in his complaint show that Mr. McFarland was told to shut up and go back to work, but he continued to push his supervisor to discuss her motivations and reasons for giving him those orders. It appears that Mr. McFarland persists in the mistaken belief that he had the right to do this and he appears confused that his supervisor can threaten him without recourse, but that his threats are not protected and can result in discipline. Mr. McFarland is a prisoner. His supervisor is a prison official. When he refuses to follow orders, prison officials may legitimately deny him privileges (such as a job) or they obtain his compliance by using force against him (such as when they removed him from the shop and sent him back to housing).
Prison administrators [are] accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. That deference extends to a prison security measure taken in response to an actual confrontation with riotous inmates, just as it does to prophylactic or preventive measures intended to reduce the incidence of these or any other breaches of prison discipline.Whitley v. Albers, 475 U.S. 312, 321-322 (1986) (citations, ellipsis, and quotation marks omitted). For the foregoing reasons, the Rule 59 motion is DENIED.
SO ORDERED.