United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDS OF FACT AND RECOMMENDATIONS
A. EIFRET UNITED STATES MAGISTRATE JUDGE
November 1, 2017, Plaintiff Marcellus Dwain Williams
(“Williams”), proceeding pro se, and
then incarcerated at the Western Regional Jail in
Barboursville, West Virginia, filed a complaint against the
defendants under 42 U.S.C. § 1983. (ECF No. 2.)
Currently pending are Williams's Application to Proceed
Without Prepayment of Fees and Costs, (ECF No. 1), and an
initial screening of the complaint under 28 U.S.C. §
1915. This matter is assigned to the Honorable Robert C.
Chambers, United States District Judge, and by standing order
has been referred to the undersigned United States Magistrate
Judge for the submission of proposed findings of fact and
recommendations for disposition pursuant to 28 U.S.C. §
636(b)(1)(B). Having thoroughly reviewed Williams's
allegations, the undersigned FINDS that the
complaint fails to state a claim upon which relief may be
granted. Therefore, the undersigned GRANTS
Williams's Application to Proceed in forma
pauperis, but RECOMMENDS that the
presiding District Judge DISMISS the
complaint, with prejudice, and
REMOVE this matter from the docket of the
alleges that on October 12, 2017, while he was an inmate at
the Western Regional Jail, he was instructed by a
correctional officer to go stand by a gate with other
inmates. (ECF No. 2 at 4). As Williams was walking to the
gate, a second correctional officer, Defendant Thompson, made
a racial slur to and about Williams, who is African-American.
(Id. at 4-5). According to Williams, Defendant
Thompson's hateful comment was recorded by the
communication box at F-Tower and by the F-hallway box near
the gate. Williams seeks monetary compensation in the amount
of $500, 000. (Id. at 5).
to the provisions of 28 U.S.C. § 1915, a court must
screen each case in which a prisoner seeks to proceed in
forma pauperis. The court must dismiss the case, or any
part of it, if the complaint is frivolous, malicious, fails
to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant “who is immune from
such relief.” 28 U.S.C. § 1915. A
“frivolous” case has been defined as one which is
based upon an indisputably meritless legal theory, Anders
v. California, 386 U.S. 738, 744 (1967), or lacks
“an arguable basis either in law or fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989);
Denton v. Hernandez, 504 U.S. 25 (1992). Likewise, a
complaint fails to state a compensable claim, and therefore
should be dismissed, when viewing the well-pleaded factual
allegations in the complaint as true and in the light most
favorable to the plaintiff, the complaint does not contain
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp v.
Twombly, 550 U.S. 544, 570 (2007).
Supreme Court further clarified the
“plausibility” standard in Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (2009), stating that the
Court is required to accept as true the factual allegations
asserted in the complaint, but is not required to accept the
legitimacy of legal conclusions that are “couched as .
. . factual allegation[s].” Id. at 678
(quoting Bell Atlantic Corp, 550 U.S. at 554).
“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.” Id. “[W]here the well-pleaded
facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it
has not ‘show[n]'-‘that the pleader is
entitled to relief.'” Id. at 679.
has filed his complaint pro se, and courts are
required to liberally construe pro se complaints.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). However,
even under this less stringent standard, the complaint still
must contain sufficient factual allegations to support a
valid legal cause of action. Bass v. E.I. Dupont de
Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003).
The court may not rewrite the pleading to include claims that
were never presented, Parker v. Champion, 148 F.3d
1219, 1222 (10th Cir. 1998), construct the plaintiff's
legal arguments for her, Small v. Endicott, 998 F.2d
411, 417-18 (7th Cir. 1993), or “conjure up questions
never squarely presented” to the court. Beaudett v.
City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
42 U.S.C. § 1983 provides a remedy to parties who are
deprived of federally protected civil rights by persons
acting under color of any state “law, statute,
ordinance, regulation, custom, or usage.” To state a
cause of action under § 1983, a plaintiff must allege
facts showing that: (1) an official deprived the plaintiff of
a federally protected civil right, privilege or immunity and
(2) that the official did so under color of State law. 42
U.S.C. § 1983; see also Perrin v. Nicholson,
C/A No. 9:10-1111-HFF-BM, 2010 WL 3893792 (D.S.C. Sept. 8,
2010). If either of these elements is missing, the complaint
fails to state a claim for relief under 42 U.S.C. §
case, Williams complains that he was the victim of racist,
verbal harassment by Defendant Thompson. The law is
well-settled that verbal abuse of inmates by correctional
officers, without more, does not give rise to a
constitutional claim under § 1983. See Tokley v.
Ratliff, No. CIV A 707CV00109, 2007 WL 1046955, at *1
(W.D. Va. Apr. 3, 2007) (citing Morrison v. Martin,
755 F.Supp. 683, 687 (E.D. N.C. 1990); also Owens v.
Vanmeter, No. CIV.A. RWT-09-1780, 2010 WL 817315, at *5
(D. Md. Mar. 4, 2010) (“The use of racist epithets,
while offensive, is not actionable under 42 U.S.C. §
1983.”) (collecting cases); Keyes v. City of
Albany, 594 F.Supp. 1147, 1155 (N.D.N.Y. 1984)
(“[T]he use of vile and abusive language [including
racial epithets], no matter how abhorrent or reprehensible,
cannot form the basis for a § 1983 claim.”);
Burdos v. Canino, 641 F.Supp.2d 443, 455 (E.D. Pa.
2009) (“threats and offensive language are not
actionable under § 1983”); Calhoun v.
Hargrove, 312 F.3d 730, 734 (5th Cir. 2002) (holding
that verbal taunts and racial slurs do not give rise to
liability under § 1983); Haywood v. Gifford,
No. 1:17-CV-398, 2017 WL 5633316, at *4 (S.D. Ohio Oct. 4,
2017), report and recommendation adopted, No.
1:17-CV-398, 2017 WL 5598167, at *4 (S.D. Ohio Nov. 21, 2017)
(“[I]t is well-settled that “[v]erbal harassment
or idle threats by a state actor do not create a
constitutional violation and are insufficient to support a
section 1983 claim for relief.”) (citing Wingo v.
Tennessee Dep't of Corp., 499 Fed.Appx. 453, 455
(6th Cir. 2012)); Black Spotted Horse v. Else, 767
F.2d 516, 517 (8th Cir. 1985) (holding that the use of
racially offensive language in dealing with a prisoner does
not, by itself, state a constitutional claim); and
Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.
1987) (noting that verbal harassment or abuse is not
sufficient to state a § 1983 claim). Accordingly, the
undersigned FINDS that Williams's
complaint is limited to an allegation of verbal harassment,
which, while objectionable, fails to state a claim for which
relief may be granted.
Proposal and Recommendations
reasons set forth above, the undersigned respectfully
PROPOSES that the United States District
Judge accept and adopt the proposed findings and
RECOMMENDS that Plaintiff's Complaint,
(ECF No. 2) be DISMISSED, with prejudice,
and this civil action be REMOVED from the
docket of the Court.
is notified that this “Proposed Findings and
Recommendations” is hereby FILED, and
a copy will be submitted to the Honorable Robert C. Chambers,
United States District Judge. Pursuant to the provisions of
Title 28, United States Code, Section 636(b)(1)(B), and Rules
6(d) and 72(b), Federal Rules of Civil Procedure, Plaintiff
shall have fourteen days (filing of objections) and three
additional days (if received by mail) from the date of filing
this “Proposed Findings and Recommendations”
within which to file with the Clerk of this Court, specific
written objections, identifying the portions of the
“Proposed Findings and ...