Opinion
No. 3-02-CV-0816-D
April 25, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a civil rights action brought under 42 U.S.C. § 1983. Plaintiff Kenneth Daniels is an inmate in the Dawson State Jail. Defendants are Dale K. Murray and Anita F. Heard, two corrections officers at the jail.
Plaintiff tendered an application for leave to proceed in forma pauperis and a standard complaint form used by prisoners in filing civil rights actions. The information provided by plaintiff in his pauper's affidavit indicates that he lacks the funds necessary to prosecute this case. The Court granted leave to proceed in forma pauperis and allowed the complaint to be filed. Upon further review of the complaint, the Court determines that this action is frivolous and should be summarily dismissed under 28 U.S.C. § 1915(e)(2).
II.
On March 8, 2002, two corrections officers allegedly approached plaintiff's bunk and woke him out of a deep sleep. One officer verbally abused plaintiff using racially derogatory language. Another officer referred to him as a rapist and a child molester. As a result of these unprovoked remarks, plaintiff states that he has suffered mental anguish and severe headaches. He seeks $10,000 in damages from each defendant.
A.
A district court may dismiss a complaint filed in forma pauperis if it concludes that the action is frivolous or malicious. 28 U.S.C. § 1915(e)(2). An action is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989); Henson-El v. Rogers, 923 F.2d 51, 53 (5th Cir.), cert. denied, 111 S.Ct. 2863 (1991). A complaint is without an arguable basis in law if it is grounded upon an untenable or discredited legal theory. Neitzke, 109 S.Ct. at 1831. A claim may be deemed to lack an arguable basis in fact only if it is based upon factual allegations that are clearly fanciful or delusional in nature. Denton v. Hernandez, 504 U.S. 25, 33, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
B.
Plaintiffs claim is without a arguable basis in law. Verbal abuse, standing alone, does not give rise to a cause of action under 42 U.S.C. § 1983. See Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993). Moreover, a prisoner may not bring a civil action for mental or emotional injury suffered while in custody without a prior showing of physical harm. See 42 U.S.C. § 1997e(e). Accordingly, plaintiff is not entitled to relief.
RECOMMENDATION
Plaintiff's complaint should be summarily dismissed as frivolous pursuant to 28 U.S.C. § 1915(e)(2).