Opinion
CIVIL ACTION NO. 14-1349 SECTION "B" (1)
07-02-2014
JOHN WASHINGTON, JR. v. GREG CHAMPAIGN, ET AL.
REPORT AND RECOMMENDATION
Plaintiff, John Washington, Jr., a state prisoner, filed this pro se civil action pursuant to 42 U.S.C. § 1983 against Sheriff Greg Champaign, Deputy Brossard, Lieutenant Mark Beard, Warden Roland Ledet, Sergeant Cortez, and Captain K. DeCorte. In his complaint, plaintiff claims that, on February 15, 2014, Deputy Brossard forgot to turn off the intercom and, as a result, was heard using a racial epithet in reference to the facility inmates.
On the complaint, plaintiff also listed Nicholas Joseph, Rashid Toliver, and Janerio Dewey as plaintiffs. However, those individuals did not sign the complaint or otherwise indicate their willingness to have this case brought in their names. Accordingly, the are not considered plaintiffs in this action.
Federal law mandates that federal courts "review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity." 28 U.S.C. § 1915A(a). Regarding such lawsuits, federal law further requires:
On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint -28 U.S.C. § 1915A(b).
(1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune from such relief.
Additionally, with respect to actions filed in forma pauperis, such as the instant lawsuit, federal law similarly provides:
Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that ... the action or appeal -28 U.S.C. § 1915(e)(2)(B).
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary damages against a defendant who is immune from such relief.
A complaint is frivolous "if it lacks an arguable basis in law or fact." Reeves v. Collins, 27 F.3d 174, 176 (5th Cir. 1994). In making a determination as to whether a claim is frivolous, the Court has "not only the authority to dismiss a claim based on an indisputably meritless legal theory, but also the unusual power to pierce the veil of the complaint's factual allegations and dismiss those claims whose factual contentions are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
A complaint fails to state a claim on which relief may be granted when the plaintiff does not "plead enough facts to state a claim to relief that is plausible on its face. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (citation, footnote, and quotation marks omitted).
Although broadly construing plaintiff's complaint, the Court nevertheless finds that the complaint should be dismissed as frivolous and/or failing to state a claim on which relief may be granted. In this lawsuit, plaintiff claims that his rights were violated when Deputy Brossard used a racial epithet when referring to the facility inmates. However, while such an act is deplorable, it simply is not actionable under 42 U.S.C. § 1983. See Calhoun v. Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) ("[C]laims of verbal abuse are not actionable under § 1983 ...."); see also Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993); Harvey v. Thompson, Civ. Action No. 08-3850, 2009 WL 604887, at *9 (E.D. La. Mar. 4, 2009).
The court must liberally construe a pro se civil rights complaint. See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994).
RECOMMENDATION
It is therefore RECOMMENDED that plaintiff's federal civil rights complaint be DISMISSED WITH PREJUDICE as frivolous and/or for failing to state a claim on which relief may be granted.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. 28 U.S.C. § 636(b)(1); Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).
Douglass referenced the previously applicable ten-day period for the filing of objections. Effective December 1, 2009, 28 U.S.C. § 636(b)(1) was amended to extend that period to fourteen days.
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New Orleans, Louisiana, this second day of July, 2014.
/s/_________
SALLY SHUSHAN
UNITED STATES MAGISTRATE JUDGE