Opinion
No: 4:20-cv-00108 JM-PSH
03-09-2020
JAMES DANIEL GLENN WALTON ADC #553219 PLAINTIFF v. RAYMOND OLENDER, et al. DEFENDANTS
PROPOSED FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Recommendation has been sent to United States District Judge James M. Moody Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.
DISPOSITION
Plaintiff James Daniel Glenn Walton, an inmate at the Central Arkansas Community Correction Center, filed a pro se complaint pursuant to 42 U.S.C. § 1983 on January 30, 2020 (Doc. No. 2). For the reasons stated herein, Walton's claims should be dismissed for failure to state a claim upon which relief may be granted.
I. Screening Standard
Federal law requires courts to screen prisoner complaints. 28 U.S.C. § 1915A, 1915(e)(2). Claims that are legally frivolous or malicious; that fail to state a claim for relief; or that seek money from a defendant who is immune from paying damages should be dismissed before the defendants are served. 28 U.S.C. § 1915A, 1915(e)(2). Although a complaint requires only a short and plain statement of the claim showing that the pleader is entitled to relief, the factual allegations set forth therein must be sufficient to raise the right to relief above the speculative level. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 555 (2007) ("a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment]to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. . . ."). While construed liberally, a pro se complaint must contain enough facts to state a claim for relief that is plausible on its face, not merely conceivable.
II. Analysis
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege that the conduct of a defendant acting under color of state law deprived him of a right, privilege, or immunity secured by the United States Constitution or by federal law. 42 U.S.C. § 1983. Walton alleges that Raymond Olender, a therapeutic community supervisor, made inappropriate statements to him regarding his sexuality and threatened to make the same remarks to his family. Doc. No. 2 at 6. Walton alleges that the center supervisor, Mark Werner, allowed this to happen. Insults or threats generally do not rise to the level of a constitutional violation. See Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th Cir. 1992) (finding officer's use of racial slur and threat to knock prisoner's teeth out was not actionable). The only exception to this rule is when a verbal threat rises to the level of a "wanton act of cruelty" such that the inmate is in fear of "instant and unexpected death at the whim of his allegedly bigoted custodians." Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir.1986). Walton's allegations of verbal abuse, while inappropriate, do not approach this threshold, and he does not state an actionable 1983 claim based on Olender's verbal remarks or Werner's failure to take corrective action.
See also McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (inmate's allegations of verbal harassment were not actionable under § 1983); O'Donnell v. Thomas, 826 F.2d 788, 790 (8th Cir. 1987) (verbal threats and abuse by jail officials insufficient to state a constitutional violation); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir. 1985) (allegation of racially offensive language directed at a prisoner does not, by itself, state a constitutional claim).
III. Conclusion
For the reasons stated herein, it is recommended that:
1. Walton's complaint be dismissed without prejudice for failure to state a claim upon which relief may be granted.
2. Dismissal of this action count as a "strike" within the meaning of 28 U.S.C. § 1915(g).
3. The Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis appeal from the order adopting this recommendation and accompanying judgment would not be taken in good faith.
IT IS SO RECOMMENDED this 9th day of March, 2020.
/s/_________
UNITED STATES MAGISTRATE JUDGE