Opinion
Civ. No. 98-2421 (DRD).
December 4, 1998
Kevin Darryl Hayes, # 267099, South Woods State Prison, Bridgeton, New Jersey, Pro se plaintiff.
Adriana M. Calderon, Esq., Deputy Attorney General, Trenton, New Jersey, Attorneys for defendants.
O P I N I O N
Plaintiff Kevin Darryl Hayes, a New Jersey State prisoner incarcerated at the South Woods State Prison ("South Woods"), instituted this action for alleged violations of his civil rights pursuant to 42 U.S.C. § 1983. Defendants, Senior Corrections Officers Ruben Pimentel and Abukar Sadiq, move to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), and Plaintiff moves for appointment of counsel and to amend the Complaint to add "Officer Smith" as the name of the "John Doe" defendant. For the reasons set forth below, Defendants' motion will be granted, Plaintiff's motion for appointment of counsel will be dismissed as moot and his motion to amend will be denied as futile.
The caption incorrectly names Officer Pimentel as "Primental."
While motions to amend are routinely granted absent undue prejudice to the opposing party or undue delay, bad faith or dilatory motive on the part of the movant, courts may deny leave to amend where the amendment would be futile. Foman v. Davis , 371 U.S. 178, 182 (1962). As discussed below, Plaintiff fails to state a constitutional claim and thus his amendment would be futile.
BACKGROUND
The following facts have been taken from the Complaint and are accepted as true for the purposes of this motion. Plaintiff alleges that on July 17, 1996, while incarcerated at East Jersey State Prison ("EJSP"), Defendants utilized excessive force upon him in violation of his constitutional rights. Specifically, he alleges that on that date at approximately 8:15 p.m., Officer Pimentel spoke to Plaintiff in a "disrespectful manner" and used "vulgar obscenities" in ordering Plaintiff to lock back in his cell. Compl., Statement of Facts. Plaintiff claims that he called to Officer Sadiq, the Second Wing Officer, to explain the situation to him. Id. Officer Sadiq told Plaintiff to wait for his phone time. Id. Plaintiff claims that while speaking to Officer Sadiq an inmate named Davis, who was passing out ice, came to Plaintiff's cell. Id. At that point, Officer Sadiq allegedly told Officer Pimentel to open Plaintiff's cell door so Plaintiff could get his ice. Id.Plaintiff claims that once his cell door was opened, Officer Pimentel called Plaintiff to his desk which was approximately 15- 20 feet away from his cell and that Pimentel told Plaintiff that "this was his wing and he'll do what he wanted." Id. Plaintiff's response to Officer Pimentel was that the officer "was miserable." Id. Plaintiff claims that Officer Pimentel responded by stating that Plaintiff's family "would be miserable" when they came to visit Plaintiff. Id.
Plaintiff alleges that as he turned around to ask Officer Pimentel what he had said about Plaintiff's family, the officer pushed him to the floor. Id. Plaintiff claims that this push caused him "physical pain and soreness to my already injured ankle" and "mental anguish." Id. Plaintiff then claims that Officer Pimentel grabbed him by the waist and tried to wrestle him to the floor. Id.
Plaintiff further alleges that at this time another corrections officer, "John Doe," grabbed Plaintiff around his neck and began to choke him until Plaintiff began to "pass out." Id. Plaintiff claims that Officer Sadiq did nothing to stop the "vicious attack" or to intervene until he realized that Plaintiff was "struggling to breathe." Id.
Plaintiff also alleges that he was placed in punitive segregation under the "false pretenses of ass[a]ulting a[n] officer." Id. He claims that he remained in lock-up for six days without receiving any disciplinary charges. Id. He further claims that he was never interviewed about this incident, even after allegedly submitting grievances to prison administration. Id. According to Plaintiff he was transferred to Northern State Prison on July 23, 1996, six days after the incident. Id.
In the Complaint Plaintiff seeks a declaratory judgment that Defendants violated his constitutional rights, a restraining order preventing future harassment, and compensatory and punitive damages. On July 6, 1998, this Court dismissed Plaintiff's disciplinary due process claims as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(1) and on July 23, 1998 denied Plaintiff's June 29, 1998 motion for appointment of counsel. Currently pending are Defendants' motion to dismiss Plaintiff's remaining claims for excessive use of force and harassment as well as Plaintiff's August 10, 1998 motion for appointment of counsel and his October 13, 1998 motion for leave to amend the Complaint.
DISMISSAL PURSUANT TO RULE 12(b)(6)
A complaint must be dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted if the court finds "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). In analyzing motions to dismiss, all allegations set forth in the complaint must be accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). A court should allow a plaintiff to amend the complaint instead of dismissing it where "a more carefully drafted complaint might state a claim upon which relief could be granted." Friedlander v. Nims, 755 F.2d 810, 813 (11th Cir. 1985);see Howze v. Jones Laughlin Steel Corp., 750 F.2d 1208, 1212 (3d Cir. 1984).
STANDARD OF REVIEW FOR PRO S.E. SUBMISSIONS
It is recognized that pro se submissions "must be held to `less stringent standards than formal pleadings drafted by lawyers.'" Estelle v. Gamble, 429 U.S. 97, 106 (1976), reh'g denied, 429 U.S. 1066 (1977) (quoting Conley v. Gibson, supra, 355 U.S. at 45-46); see also Haines v. Kerner, 404 U.S. 519, 520, reh'g denied, 405 U.S. 948 (1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992); Lewis v. Attorney Gen. of the United States, 878 F.2d 714, 722 (3d Cir. 1989). When reviewing apro se complaint, a court must construe a plaintiff's factual allegations and his or her claim liberally. Neitzke v. Williams, 490 U.S. 319, 330 n. 9 (1989); Haines, supra, 404 U.S. at 520; Roman v. Jeffes, 904 F.2d 192, 197 (3d Cir. 1990).
ANALYSIS
Defendants argue that the Complaint must be dismissed because i) Plaintiff fails to state a claim for cruel and unusual punishment under the Eighth Amendment; ii) the Prison Litigation Reform Act, 42 U.S.C. § 1997e ("PLRA"), bars the complaint because Plaintiff has not alleged a compensable injury; iii) verbal harassment is not actionable under § 1983; iv) Plaintiff's claims for damages are barred by the Eleventh Amendment because Defendants acted solely in their official capacities; and v) negligent conduct is not actionable under § 1983.
I. EIGHTH AMENDMENT
The Eighth Amendment provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." The Eighth Amendment is the primary source of substantive protection to convicted prisoners in excessive force claims. Whitley v. Albers, 475 U.S. 312, 327 (1986); Collins v. Bopson, 816 F. Supp. 335, 339 (E.D.Pa. 1993). Only the "unnecessary and wanton infliction of pain" constitutes cruel and unusual punishment forbidden by the Eighth Amendment. Whitley, 475 U.S. at 319; Estelle v. Gamble, 429 U.S. 97, 103 (1976). The use of excessive physical force against a prisoner may constitute cruel and unusual punishment even when the inmate does not suffer serious injury; however,
[n]ot . . . every malevolent touch by a prison guard gives rise to a federal cause of action. . . . The Eighth Amendment's prohibition of "cruel and unusual" punishments necessarily excludes from constitutional recognition de minimis uses of physical force, provided that the use of force is not of a sort "repugnant to the conscience of mankind."Hudson v. McMillian, 503 U.S. 1, 9-10 (1992) (citations omitted). As a result, to state an Eighth Amendment claim a prisoner's injury must be more than de minimis, but need not be significant. Id.; see also Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Hudson to hold that plaintiff's alleged injury of a sore, bruised ear lasting for three days was de minimis and did not raise a valid Eighth Amendment claim for excessive use of force).
In the present case, Plaintiff claims that Officer Pimentel pushed him and grabbed him around the waist attempting to wrestle him to the ground, and he claims that the push caused "pain and soreness" to his "already injured ankle" and caused him "mental anguish." Compl., Statement of Facts. Further, while Plaintiff claims that Officer Sadiq stood by and watched Plaintiff allegedly being choked by the "John Doe" officer, he acknowledges that Officer Sadiq came to his assistance. Id. Plaintiff does not allege that he sought or received medical treatment for any physical injury resulting from the incident or that he sustained long term damage. See Siglar, 112 F.3d at 193 (no allegations by plaintiff that medical attention was sought or long term damage was sustained). Thus, Plaintiff's alleged injury is de minimis at best. His allegations against Defendants do not rise to the level of an Eighth Amendment violation as they fall short of a use of force "repugnant to the conscience of mankind."
II. PRISON LITIGATION REFORM ACT
The Prison Litigation Reform Act ("PLRA") provides in part:
No federal civil action may be brought by a prisoner confined in jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury.42 U.S.C. § 1997e(e). In other words, this section bars inmate claims for damages based purely on mental and emotional distress.
As discussed above, Plaintiff has failed to allege any compensable physical injury. Therefore, Plaintiff's claim for damages for "mental anguish" must be dismissed. See, e.g., Siglar, 112 F.3d at 193-194 (allegation of de minimis injury insufficient to establish requisite physical injury to support a claim for emotional or mental suffering).
III. VERBAL HARASSMENT
It is well established that verbal harassment in and of itself does not suffice to state a claim under § 1983. See Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) (alleged verbal harassment and verbal abuses from security officer toward prisoner plaintiffs not actionable); Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D.Pa. 1993) ("Mean [verbal] harassment of the sort alleged . . . is insufficient to state a constitutional deprivation"); Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987) (defendant's use of vulgar language does not give rise to a claim under § 1983). Similarly, "mere threatening language and gestures of custodial personnel do not amount to constitutional violations." Douglas v. Marino, 684 F. Supp. 395, 397 (D.N.J. 1988).
In the present case, Plaintiff alleges that Officer Pimentel spoke to him in a "disrespectful manner" and used "vulgar obscenities." Compl., Statement of Facts. Plaintiff also claims that after he called Officer Pimentel a "miserable" human being Officer Pimentel told him that his family would be "miserable when they came up to see [him]." Id. Even assuming, as we must for the purposes of the motion to dismiss, that Plaintiff's claims are true, they amount to mere verbal harassment and do not rise to the level of an actionable constitutional violation.
IV. ELEVENTH AMENDMENT IMMUNITY
Defendants argue that Plaintiff's claims against them in their official capacities should be dismissed as they are immune from suit under the Eleventh Amendment. However, the issue of immunity need not be reached because, as discussed above, Plaintiff has failed to allege a constitutional violation.
V. NEGLIGENT CONDUCT NOT ACTIONABLE UNDER § 1983
Finally, Defendants correctly argue that Plaintiff's allegations of negligent conduct do not rise to the level of a constitutional violation. As discussed above, Plaintiff's allegations of intentional use of excessive force fall short of establishing a constitutional violation. Any allegations of negligent conduct must fail as well.
CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss the Complaint will be granted. Plaintiff's motion for appointment of counsel will be dismissed as moot and his motion to amend the Complaint will be denied as futile. An appropriate order follows.
__________________________________ Dickinson R. Debevoise, U.S.S.D.J.
Dated: December, 1998