Opinion
Civil Action 23-0272
03-22-2023
BERETANIA WILSON v. ARNDRA STEPHENS
SECTION P
S. MAURICE HICKS, JR. JUDGE.
REPORT AND RECOMMENDATION
Kayla Dye McClusky, United States Magistrate Judge
Plaintiff Beretania Wilson, a prisoner at Caddo Correctional Center proceeding pro se and in forma pauperis, filed this proceeding on approximately February 28, 2023, under 42 U.S.C. § 1983. He names Deputy Arndra Stephens as defendant.For reasons that follow, the Court should dismiss Plaintiff's claims.
This matter has been referred to the undersigned for review, report, and recommendation under 28 U.S.C. § 636 and the standing orders of the Court.
Background
Plaintiff claims that on February 11, 2023, Deputy Arndra Stephens sexually harassed him by making vile sexual comments. [doc. # 1, pp. 3, 6]. Plaintiff responded, stating that he did not “joke like that” and did not “get down like that[.]” Id. at 3.
Plaintiff claims that later the same day, Deputy Stephens walked to Plaintiff's cell and made another comment, stating, “I'm a real cedar grove baby on 19 and I keep a gun in the car and I'm leave that in the streets[.] [sic].” Id. at 3-4.
Plaintiff seeks compensation, and he asks the Court to “press charges” against Deputy Stephens. Id. at 5.
Law and Analysis
1. Preliminary Screening
Plaintiff is a prisoner who has been permitted to proceed in forma pauperis. As a prisoner seeking redress from an officer or employee of a governmental entity, his complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998) (per curiam). Because he is proceeding in forma pauperis, his Complaint is also subject to screening under § 1915(e)(2). Both § 1915(e)(2)(B) and § 1915A(b) provide for sua sponte dismissal of the complaint, or any portion thereof, if the Court finds it is frivolous or malicious, if it fails to state a claim on which relief may be granted, or if it seeks monetary relief against a defendant who is immune from such relief.
Under 28 U.S.C. § 1915(h), “‘prisoner' means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program.”
A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. Courts are also afforded the unusual power to pierce the veil of the factual allegations and dismiss those claims whose factual contentions are clearly baseless. Id.
A complaint fails to state a claim on which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible when it contains sufficient factual content for the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570). Plausibility does not equate to possibility or probability; it lies somewhere in between. Id. Plausibility simply calls for enough factual allegations to raise a reasonable expectation that discovery will reveal evidence to support the elements of the claim. Twombly, 550 U.S. at 556.
Assessing whether a complaint states a plausible claim for relief is a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, supra. A well-pled complaint may proceed even if it strikes the court that actual proof of the asserted facts is improbable and that recovery is unlikely. Twombly, supra.
In making this determination, the court must assume that all of the plaintiff's factual allegations are true. Bradley v. Puckett, 157 F.3d 1022, 1025 (5th Cir. 1998). However, the same presumption does not extend to legal conclusions. Iqbal, supra. A pleading comprised of “labels and conclusions” or “a formulaic recitation of the elements of a cause of action” does not satisfy Rule 8. Id. “[P]laintiffs must allege facts that support the elements of the cause of action in order to make out a valid claim.” City of Clinton, Ark. v. Pilgrim's Pride Corp, 632 F.3d 148, 152-53 (5th Cir. 2010). Courts are “not free to speculate that the plaintiff ‘might' be able to state a claim if given yet another opportunity to add more facts to the complaint.” Macias v. Raul A. (Unknown) Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
A hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480, 483 n.4 (5th Cir. 1991). A district court may dismiss a prisoner's civil rights complaint as frivolous based upon the complaint and exhibits alone. Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986).
“To state a section 1983 claim, a plaintiff must (1) allege a violation of a right secured by the Constitution or laws of the United States and (2) demonstrate that the alleged deprivation was committed by a person acting under color of state law.” Whitley v. Hanna, 726 F.3d 631, 638 (5th Cir. 2013) (internal quotation marks omitted). Consistent with the standard above, a “[S]ection 1983 complaint must state specific facts, not simply legal and constitutional conclusions.” Fee v. Herndon, 900 F.2d 804, 807 (5th Cir. 1990).
2. Criminal Charges
As above, Plaintiff seeks criminal charges against Deputy Stephens.
There is no constitutional right to have a person criminally prosecuted. Oliver v. Collins, 914 F.2d 56, 60 (5th Cir. 1990).Investigating and prosecuting possible criminal activities lies in the exclusive jurisdiction of the executive branch of government. In the federal context, for example, prosecuting criminal actions lies in the discretion of the Attorney General of the United States and duly authorized United States Attorneys. In Louisiana, prosecuting criminal actions lies in the discretion of the Louisiana Attorney General and the various District Attorneys. See LA. CODE. CRIM. PROC. ARTS. 61 AND 62.
See U.S. v. Batchelder, 442 U.S. 114, 124 (1979) (“Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor's discretion.”); Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973) (“[A] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another.”).
Plaintiff should direct his concerns to a local, state, or federal law enforcement agency. He should be aware that if a prosecuting authority investigates and chooses not to file charges, “[t]he decision to file or not file criminal charges . . . will not give rise to section 1983 liability.” Oliver, 904 F.2d at 281. The courts “allow the government discretion to decide which individuals to prosecute, which offenses to charge, and what measure of punishment to seek.” U.S. v. Lawrence, 179 F.3d 343, 348 (5th Cir. 1999); see, e.g., Hymel v. Champagne, 2007 WL 1030207, *2 (E.D. La. 2007) (denying a plaintiff's request to investigate a correctional center: “this Court has no authority to issue such an order and plaintiff has no constitutional right to such an order. Moreover, to the extent that plaintiff is alleging that a criminal investigation should be instituted, such investigations are solely within the purview of law enforcement authorities.”).
Accordingly, the Court should dismiss Plaintiff's request as frivolous.
3. Limitation on Recovery Under 42 U.S.C. § 1997e(e)
Plaintiff's only remaining request for relief is monetary compensation (above, the undersigned recommended dismissing Plaintiff's request for criminal charges).
Under 42 U.S.C. § 1997e(e), “No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act (as defined in section 2246 of Title 18).” “[I]t is the nature of the relief sought, and not the underlying substantive violation, that controls: Section 1997e(e) applies to all federal civil actions in which a prisoner alleges a constitutional violation, making compensatory damages for mental or emotional injuries non-recoverable, absent physical injury.” Geiger v. Jowers, 404 F.3d 371, 375 (5th Cir. 2005). “The ‘physical injury' required by § 1997e(e) ‘must be more than de minimus [sic], but need not be significant.'” Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (quoting Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997)).
Here, Plaintiff “brought” this action when he was incarcerated. [doc. #s 1, 1-2]. As to the claims above, he does not allege that he suffered any physical injury-or any other compensable injury or damage-because of the alleged actions or failures. Moreover, he does not allege that he was a victim of a “sexual act,” which is defined in 18 U.S.C. § 2246(2), as
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;
Plaintiff alleges that Deputy Stephens made sexually harassing comments. This does not qualify as a “sexual act” under 18 U.S.C. § 2246(2).
To the extent Plaintiff alleges that defendant caused him mental, emotional, or de minimis physical injuries, he may not recover monetary relief. Because Plaintiff does not seek any other cognizable relief for the claims above, the Court should dismiss the claims.
4. Verbal Abuse and Threats
To reiterate, Plaintiff claims that Deputy Stephens sexually harassed him. He also suggestively claims that Stephens threatened him when he stated, “I'm a real cedar grove baby on 19 and I keep a gun in the car and I'm leave that in the streets[.] [sic].” Id. at 3-4.
The undersigned is sympathetic to Plaintiff's concerns and considers defendant's alleged lascivious remarks abhorrent. However, even if Plaintiff amended and sought cognizable relief, he does not state a claim of constitutional dimension.
“Verbal sexual harassment does not violate a detainee or inmate's constitutional rights[.]” Jane Doe 5 v. City of Haltom City, 106 Fed.Appx. 906, 908 (5th Cir. 2004); see Gipson v. Wilkinson, 562 Fed.Appx. 256 (5th Cir. 2014) (“Gipson's sexual harassment claim fails because verbal abuse and threatening language and gestures do not give rise to a cause of action under § 1983.”).
See White v. Gutierez, 274 Fed.Appx. 349, 2008 WL 1745203 at *1 (5th Cir. April 15, 2008) (holding that an inmate claiming that prison guards sexually harassed him by denigrating his sexual orientation failed to state a claim); Leflore v. Carroll-Montgomery RCF, 2014 WL 1276494, at *3 (N.D. Miss. Mar. 27, 2014) (finding that “verbal taunts and rude gestures” do not amount to a Section 1983 claim); Trackling v. Allen, 2010 WL 5572774, at *1-2 (M.D. La. Nov. 23, 2010) (finding, where the plaintiff alleged only a single incident of sexual harassment occurring on a single date and involving no physical contact, that the plaintiff did not state a claim).
Likewise, verbal threats, without more, do not support a claimed constitutional violation. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983). Allegations of mere verbal abuse by prison guards simply do not give rise to a cause of action under Section 1983. Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993); Siglar, 112 F.3d at 191. “[M]ere allegations of verbal abuse or epithets, reprehensible though they may be, do not amount to a cognizable constitutional violation under Section 1983.” Matthews v. LeBlanc, 2022 WL 2951759, at *1 (5th Cir. July 26, 2022).
Thus, the Court should dismiss Plaintiff's claims even assuming (arguendo) that he sought cognizable relief.
Recommendation
For the reasons above, IT IS RECOMMENDED that Plaintiff Beretania Wilson's claims be DISMISSED as frivolous and for failing to state claims on which relief may be granted.
IT IS FURTHER RECOMMENDED that Plaintiff's motion for appointed counsel, [doc. # 3], be DENIED AS MOOT.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Rule 72(b), parties aggrieved by this recommendation have fourteen (14) days from service of this Report and Recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen (14) days after being served with a copy of any objections or response to the district judge at the time of filing.
Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in this Report and Recommendation within fourteen (14) days following the date of its service, or within the time frame authorized by Fed.R.Civ.P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the District Court, except upon grounds of plain error. See Douglass v. United Services Automobile Association , 79 F.3d 1415 (5th Cir. 1996).