Opinion
No. 3:01-CV-0005-R
January 22, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order of the court in implementation thereof; this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a civil rights complaint pursuant to 42 U.S.C. § 1983.
Parties: Plaintiff is presently incarcerated at the Venus Unit of the Texas Department of Criminal Justice — Institutional Division in Venus, Texas. Defendants are Officer Daniel Simpson, Warden Robert Shaw, Assistant Warden Bobby Phillips and Senior Division Director Melody L. Turner. These Defendants are employees of the Venus Unit, a private prison run by Corrections Corporation of America (CCA). In addition to the above CCA's employees, the complaint names as a defendant Dale Hanna, district attorney for Cleburne, Texas. The court has not issued process in this case.
Statement of Case: The complaint alleges that on October 8, 2000, Defendant Simpson made a discriminatory remark when Plaintiff went to the kitchen a second time to retrieve sack lunches that had been approved by Assistant Warden Phillips for the Yom Kippur eve celebration. Simpson allegedly told Plaintiff in front of other inmates: "I wish I was a Palestinian so I could help kill all of you Jews." Plaintiff construed the statement as a "terrorist threat" and immediately sought to exhaust his administrative remedies by filing step one and step two grievances. He requested that the matter be investigated and that Simpson be disciplined. Defendants Shaw, Phillips and Turner ignored Plaintiffs' requests. District Attorney Hanna also declined to file "terroristic threat charges" against Simpson, informing Plaintiff that he would forward his complaint to the internal affairs department instead. (Complaint ¶ V). The complaint requests monetary damages against all Defendants. (Complaint ¶ VI). Findings and Conclusions: The court has permitted Plaintiff to proceed in forma pauperis. His complaint is, thus, subject to screening under 28 U.S.C. § 1915A, which imposes a screening responsibility on the district court. Section 1915A reads in pertinent part as follows:
While the complaint only requests punitive damages, the court liberally construes the complaint to request both compensatory and punitive damages.
The court shall review . . . 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 [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (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.28 U.S.C. § 1915A (emphasis added). See also 28 U.S.C. § 1915 (e)(2)(B) ("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").
Both sections 1915A(b) and 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is "frivolous" or that it "fails to state a claim upon which relief may be granted." A complaint is frivolous, if it "lacks an arguable basis either in law or in fact."Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831-32, 104 L.Ed.2d 338 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957).
42 U.S.C. § 1997e(e), enacted into law on April 26, 1996, raises a new issue in all prisoner civil rights actions seeking to recover monetary damages — namely whether the plaintiff can make a sufficient showing of physical injury. Section 1997e(e) provides that "[n]o 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." The only possible injury that Plaintiff could have suffered upon hearing Simpson's discriminatory and abusive remark was mental pain and suffering. Because Plaintiff did not suffer any physical injury, § 1997e(e) bars his request for monetary damages. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). Therefore, his complaint lacks an arguable basis in law and should be dismissed with prejudice as frivolous.
Alteratively Plaintiffs' complaint fails to raise a federal constitutional claim. A plaintiff can successfully invoke § 1983 only when his federal statutory or constitutional rights have been violated. Simpson's discriminatory statement, while reprehensible if true, does not amount to a constitutional violation. The Fifth Circuit has held that verbal abuse or harassment by a prison guard does not amount to an Eighth Amendment violation. Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997) (citing Bender v. Brumley, 1 F.3d 271, 274 n. 4 (5th Cir. 1993));see also Adkins v. Rodriguez, 59 F.3d 1034 (10th Cir. 1995) (verbal sexual harassment by jailer, while outrageous and unacceptable, did not amount to a violation of the inmate's Eighth Amendment rights); McDowell v. Jones, 990 F.2d 433 (8th Cir. 1993) (verbal threats and name calling usually are not actionable under § 1983); Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir. 1986) (per curiam) (name calling does not allege a constitutional claim); Collins v. Cundy, 603 F.2d 825 (10th Cir. 1979) (sheriffs threats to hang plaintiff did not state a constitutional claim).
The Fifth Circuit has also held that a racial epithet alone does not rise to an equal protection violation. Williams v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999), clarified on rhrg. on other grounds, 186 F.3d 633 (5th Cir. 1999).
In addition, Plaintiff cannot sue Warden Shaw merely by virtue of his title as warden of the Venus Unit. The complaint merely alleges that "by the act of omission — he approved of what officer Simpson did." (Complaint ¶ IV(B)). To be liable under § 1983, an individual must be personally involved in the acts causing the deprivation of a person's constitutional rights. See Lozano v. Smith, 718 F.2d 756 (5th Cir. 1983). It is well settled that supervisory officials cannot be held vicariously liable for their subordinates' actions under § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 56 L.Ed.2d 611 (1978); Bigford v. Taylor, 834 F.2d 1213, 1220 (5th Cir.), cert. denied, 488 U.S. 851 (1988); Thibodeaux v. Arceneaux, 768 F.2d 737, 739 (5th Cir. 1985) (per curiam). Supervisory officials maybe held liable only if they (i) affirmatively participate in acts that cause constitutional deprivation, or (ii) implement unconstitutional policies that causally result in plaintiffs' injury. See Thompkins v. Belt, 828 F.2d 298, 303 (5th Cir. 1987); see also Grandstaff v. City of Borger, 767 F.2d 161, 169-70 (5th Cir. 1985), cert. denied, 480 U.S. 916 (1987).
The allegations in the complaint reflect that Plaintiff cannot meet either of the above elements. Plaintiff does not allege any facts that this court could liberally construe to allege that Defendant Shaw was personally involved in the acts causing the alleged deprivation of Plaintiffs' constitutional rights.
Next the complaint seeks to sue Defendants Shaw, Phillips and Turner for failing to investigate and discipline Simpson for the discriminatory remark. An inadequate or invalid investigation, however, is insufficient to state a civil rights claim unless another recognized constitutional right is involved. See, e.g., Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (police chief was not individually liable, under § 1983, to claimant raped by police officer based on police chiefs failure to investigate rape, inasmuch as failure to investigate did not rise to level of separate constitutional violation of claimant's right); Burchett v. Self, 30 F.3d 133, 1994 WL 276865, *2 (6th Cir. 1994) (unpublished) (failure to investigate does not raise a constitutional claim); Scher v. Chief Postal Inspector, 973 F.2d 682, 683-84 (8th Cir. 1992) (inmates failed to state Bivens claim based on refusal of post office employees to investigate complaint regarding prison administrators' treatment of their mail); Gomez v. Whitney, 757 F.2d 1005, 1006 (9th Cir. 1985) (lack of police investigation, by itself; was not a deprivation of a constitutional right); Malloy v. City of New York, 1996 WL 648927, *2 (S.D.N.Y. Nov. 07, 1996) (unpublished) (there is no constitutional right to an investigation or arrest of an individual who has committed an assault upon a prisoner unless the omission or inadequacy of the investigation itself resulted in a deprivation of a constitutional right). Nor does Defendant's failure to discipline Simpson raise a constitutional claim.
Plaintiffs' claim against Defendant Hanna for refusing to bring criminal charges against Simpson fares no better. Hanna, as a district attorney, is entitled to absolute immunity for "acts that are an integral part of the judicial process." Oliver v. Collins, 904 F.2d 278, 281 (5th Cir. 1990). "The decision to file or not to file criminal charges falls within this category of acts that will not give rise to section 1983 liability." Id.
Plaintiff has failed to allege any cognizable claim for relief under § 1983 against Defendants Simpson, Shaw, Phillips and Turner. Moreover, his claim against Defendant Hanna is barred by the doctrine of absolute immunity. Therefore, the complaint should be dismissed with prejudice as frivolous pursuant to §§ 1915A(b)(1) and 1915 (e)(2)(B)(i), and for seeking monetary relief from a defendant who is immune from such relief pursuant to §§ 1915A(b)(2) and 1915 (e)(2)(B)(iii).
RECOMMENDATION:
For the foregoing reasons, it is recommended that Plaintiffs' complaint, as to Defendants Simpson, Shaw, Phillips and Turner, be dismissed with prejudice as frivolous see 28 U.S.C. § 1915A (b)(1) and 1915(e)(2)(B)(i), and that his complaint, as to Defendant Hanna, be dismissed as barred by the doctrine of absolute immunity, see 28 U.S.C. § 1915A(b)(2) and 1915(e)(2)(B)(iii).
A copy of this recommendation will be mailed to Plaintiff.