Opinion
CASE NO. 8:16-cv-2008-T-23TBM
09-14-2016
PEDRO ESCUDERO-ROBLES, Plaintiff, v. WARDEN TIMOTHY SHEFFIELDS, et al., Defendants.
ORDER
Escudero-Robles moves for a temporary restraining order and a preliminary injunction to stop sexual harassment by correctional officers in the Avon Park Correctional Institution. Escudero-Robles moves for leave to proceed in forma pauperis. (Doc. 2) The Prisoner Litigation Reform Act requires dismissal of an in forma pauperis prisoner's case "if the allegation of poverty is untrue" or if the case "is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e). Although entitled to a generous interpretation, Haines v. Kerner, 404 U.S. 519 (1972) (per curiam), this pro se motion for expedited relief lacks merit under this standard.
Escudero-Robles alleges that Warden Sheffields is responsible for the acts of his subordinate correctional officers, who Escudero-Robles alleges have sexually harassed him since January, 2016. Escudero-Robles represents that his exhausting the institution's grievance process has not halted the harassment. Jernard v. Comm'r, Georgia Dep't of Corr., 457 Fed. App'x 837, 838 (11th Cir. 2012), explains that a movant must prove each of the following requirements to obtain expedited injunctive relief:
A district court may grant preliminary injunctive relief only if the moving party shows that:
(1) it has a substantial likelihood of success on the merits;
(2) irreparable injury will be suffered unless the injunction issues;
(3) the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party;
and (4) if issued, the injunction would not be adverse to the public interest.
Escudero-Robles's asserted facts support neither his conclusory claim that the continued harassment places him in imminent danger nor his entitlement to either a temporary restraining order or a preliminary injunction.
Keeton v. Anderson-Wiley, 664 F.3d 865, 868 (11th Cir. 2011). A preliminary injunction is considered "an extraordinary and drastic remedy," which should not be granted unless the movant clearly establishes that he has satisfied all four requisites. Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (quotation omitted).
The motion also fails to show entitlement to relief under Section 1983. First, Escudero-Robles asserts no action against Warden Sheffields. A civil rights complaint must allege facts showing the direct involvement of each defendant in the deprivation of Escudero-Robles's civil rights. Escudero-Robles cannot base a Section 1983 claim on respondeat superior. Monell v. N.Y.C. Dep't of Social Services, 436 U.S. 691, 694 (1978). See also Goebert v. Lee County, 510 F.3d 1312, 1331 (11th Cir. 2007) ("We do not recognize vicarious liability, including respondeat superior, in § 1983 actions."). Additionally, no liability attaches to Warden Sheffields for his involvement in the grievance process. Baker v. Rexroad, 159 Fed. App'x 61, 62 (11th Cir. 2005) (holding that a prison inmate grievance procedure is not constitutionally mandated and, as a consequence, a prison official's failure to take corrective action upon a prisoner's filing of a grievance amounts to no violation of due process). See also Thomas v. Warner, 237 Fed. App'x 435, 438 (11th Cir. 2007) ("Plaintiff's allegations that prison officials failed to comply with the prison's voluntary grievance procedures does not state a due process claim."); Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) ("[A] state's inmate grievance procedures do not give rise to a liberty interest protected by the Due Process Clause."). A prison official's failure to grant the relief requested in a grievance, without more, is not actionable under Section 1983. Consequently, Escudero-Robles fails to state a claim against Warden Sheffields.
"Unpublished opinions are not considered binding precedent, but they may be cited as persuasive authority." CTA11 Rule 36-2. --------
Second, Escudero-Robles asserts no civil rights action against the correctional officers, who Escudero-Robles alleges are harassing him. Mere harassment or verbal abuse fails to rise to the level of a constitutional violation. See Hernandez v. Florida Dep't of Corr, 281 Fed. App'x 862, 866 (11th Cir. 2008) (holding that plaintiff's allegations of verbal abuse and threats by prison officials did not state a constitutional claim because the defendants never carried out the threats, and "verbal abuse alone is insufficient to state a constitutional claim"); Edwards v. Gilbert, 867 F.2d 1271, 1274 n. 1 (11th Cir. 1989) (noting that verbal taunts, alone, are insufficient to state a constitutional violation). See also Crenshaw v. City of Defuniak Springs, 891 F. Supp. 1548, 1555 (N.D. Fla. 1995) (holding that "verbal harassment and abusive language, while 'unprofessional and inexcusable,' are simply not sufficient to state a constitutional claim under Section 1983"); Munera v. Metro West Detention Ctr., 351 F. Supp. 2d 1353, 1362 (S.D. Fla. 2004) ("Verbal abuse and threats alone are not actionable as a matter of law."). Courts throughout the country agree. See, e.g., Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (holding that dismissal of an Eighth Amendment claim was proper where the inmate alleged only that the "disrespectful and assaultive comments" denied him "peace of mind"); McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993) (concluding that a prisoner's allegations about prison staff harassment generally does not state a constitutional violation); Bender v. Brumley, 1 F.3d 271, 274 n.4 (5th Cir. 1993) (holding that mere allegations of verbal abuse do not present an actionable Section 1983 claim); Swoboda v. Dubach, 992 F.2d 286, 290 (10th Cir. 1993) (recognizing that officers allegedly threatening to kill an inmate is not cognizable under Section 1983); Ivey v. Williams, 832 F.2d 950, 955 (6th Cir. 1987) (holding that verbal abuse does not violate the Eighth Amendment); McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir. 1983) (holding that threatening language and gestures of a corrections officer violates no rights protected by the Eighth Amendment); Collins v. Cundy, 603 F.2d 825, 827 (10th Cir. 1979) (holding that the sheriff's laughing at the inmate and threatening to hang him does not violate the Constitution). Thus, Escudero-Robles's allegations of verbal harassment state no actionable claim. If he decides to pursue a civil rights action, Escudero-Robles must use the required civil rights complaint form, which the clerk will send to him.
Accordingly, the motion for a temporary restraining order or preliminary injunction (Doc. 1) is DENIED. The motion for leave to proceed in forma pauperis (Doc. 2) is DENIED AS MOOT. The clerk must enter a judgment against Escudero-Robles and close this case. The clerk must send to Escudero-Robles the required civil rights complaint form and the required motion for leave to proceed in forma pauperis form.
ORDERED in Tampa, Florida, on September 14, 2016.
/s/_________
STEVEN D. MERRYDAY
UNITED STATES DISTRICT JUDGE