Opinion
Case No. 02-10230-BC.
December 17, 2002
OPINION AND ORDER OF SUMMARY DISMISSAL
Before the Court is the plaintiff's pro se civil rights complaint filed pursuant to 42 U.S.C. § 1983. The plaintiff is a state prisoner currently confined at the St. Louis Correctional Facility in St. Louis, Michigan. Pursuant to the screening provisions of 28 U.S.C. § 1915(e), the Court has screened the plaintiff's complaint and now dismisses it for failure to state a claim upon which relief can be granted.
I.
The plaintiff has been allowed to proceed without prepayment of fees. See 28 § U.S.C. § 1915(a). However, 28 U.S.C. § 1915(e)(2)(B) states:
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:
(B) the action or appeal:
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune from such relief.28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Denton v. Hernandez, 504 U.S. 25, 32 (1992). "A complaint lacks an arguable basis in law or fact if it . . . is based on legal theories that are indisputably meritless." Brown v. Bargery, 207 F.3d 863, 866 (6th Cir. 2000) (citing Neitzke, 490 U.S. at 327-28). A complaint fails to state a claim "if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Brown, 207 F.3d at 867. Sua sponte dismissal is appropriate if the prisoner civil rights complaint lacks arguable merit when filed. Goodell v. Anthony, 157 F. Supp.2d 796, 799 (E.D.Mich. 2001).
A pro se litigant's complaint is to be construed liberally, Middleton v. McGinnis, 860 F. Supp. 391, 392 (E.D.Mich. 1994) (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976), and is held to "less stringent standards" than a complaint drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). Nonetheless, such complaints still must plead facts sufficient to show a redressable legal wrong has been committed. Fed.R.Civ.P. 12(b); Dekoven v. Bell, 140 F. Supp.2d 748, 755 (E.D.Mich. 2001).
To establish a prima facie case under 42 U.S.C. § 1983, a civil rights plaintiff must establish that: (1) the defendant acted under color of state law; and (2) the offending conduct deprived the plaintiff of rights secured by federal law. Bloch v. Ribar, 156 F.3d 673, 677 (6th Cir. 1998) (citing Parratt v. Taylor, 451 U.S. 527, 535 (1981)). "If a plaintiff fails to make a showing on any essential element of a § 1983 claim, it must fail." Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001).
II.
The plaintiff claims that he has an involuntary nervous condition which causes him to lick his lips on a continual basis. The plaintiff claims that various prison staff have engaged in "unethical unprofessional conduct" by aggravating, harassing, and intimidating him because of this condition. In his complaint, the plaintiff does not specify the nature of this harassment. However, in some of the grievances that the plaintiff has attached to his complaint, it appears that most, if not all, of this harassment has been verbal. Although the plaintiff informed prison officials in one grievance that he was concerned that the licking of his lips could be interpreted as having sexual connotations towards female staff and would lead to him receiving a major misconduct charge of sexual misconduct, there are no allegations or evidence that the plaintiff ever received a major misconduct ticket. The plaintiff also claims in one of the grievances that prison staff have verbally harassed him about his lip condition in an attempt to engage him in a physical altercation by referring to the plaintiff as a "fag", i.e., a homosexual, when passing by him.
There are no allegations, however, that the plaintiff has actually been assaulted by prison staff or has received any physical injury. The plaintiff claims that this harassment has caused him to experience psychological and mental anguish, and to experience feelings of cruel and unreasonable humiliation due to his handicap. The plaintiff requests financial compensation of an unspecified amount for the long-term suffering and psychological and mental anguish that he has received from prison staff as a result of this harassment.
These allegations do not present a claim upon which relief can be granted. "Standing alone, simple verbal harassment does not constitute cruel and unusual punishment, deprive a prisoner of a protected liberty interest or deny a prisoner equal protection of the laws." DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir. 2000).
Allegations of verbal abuse and harassment by prison officials are therefore insufficient to state a claim under § 1983. Davis v. Michigan Dept. of Corrections, 746 F. Supp. 662, 667 (E.D.Mich. 1990). See also Meadows v. Gibson, 855 F. Supp. 223, 225 (W.D. Tenn. 1994) (holding that the Eighth Amendment "does not mandate polite prison guards or officials"). The plaintiff has therefore failed to state a claim upon which relief can be granted under 42 U.S.C. § 1983.
Alternatively, the plaintiff's complaint is subject to dismissal because he seeks monetary damages solely for psychological and mental anguish. 42 U.S.C. § 1997e(e) states:
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.42 U.S.C. § 1997e(e) bars claims for emotional injury absent any prior physical injury, regardless of the statutory or constitutional basis of the legal wrong. Davis v. District of Columbia, 158 F.3d 1342, 1349 (D.C. Cir. 1998). The provisions of § 1997e(e) therefore preclude monetary damages for claims of verbal harassment by prison staff. See Seaver v. Manduco, 178 F. Supp.2d 30, 37 (D.Mass. 2002). Because the harassment of which the plaintiff complains here was exclusively verbal, the plaintiff is unable to obtain money damages for mental anguish absent a showing of a prior physical injury. See Ashann-Ra v. Commonwealth of Virginia, 112 F. Supp.2d 559, 566 (W.D.Va. 2000).
III.
The complaint lacks an arguable basis in law, and the Court has no discretion in permitting the plaintiff to amend his complaint to avoid a sua sponte dismissal. McGore v. Wrigglesworth, 114 F.3d 601, 612 (6th Cir. 1997). "If a complaint falls within the requirements of § 1915(e)(2) when filed, the district court should sua sponte dismiss the complaint." Id. Accordingly, it is ORDERED that the complaint is DISMISSED as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B). This Court likewise certifies that any appeal by the plaintiff would be frivolous and not in good faith. 28 U.S.C. § 1915(a)(3); Coppedge v. United States, 369 U.S. 438, 445 (1962); Goodell, 157 F. Supp.2d at 802.