Saffold v. Watson-Foster et al (INMATE1)
REPORT AND RECOMMENDATIONS that the claims related to threats, abusive language and/or derogatory comments lodged against defendants Lambert, Judd, Sapp, Wambles, Dunn, Terry, McCovery, Byrd and Conners be dismissed with prejudice under 28 U.S.C. 1915(e)(2)(B)(i); that the erratic driving claim against defendant Byrd be dismissed with prejudice in accordance with the directives of 28 U.S.C. 1915(e)(2)(B)(i); that the claim presented against defendant Watson-Foster be dismissed with prejudice pursuant to the provisions of 28 U.S.C. 1915(e)(2)(B)(i); that defendants Lambert, Judd, Sapp, Dunn, Terry, McCovery, Byrd, Conners and Watson-Foster be dismissed from this cause of action; that the equal protection claims lodged against defendant Wambles be referred back to the magistrate judge for appropriate proceedings. Objections to R&R due by 3/25/2005. Signed by Judge Delores R. Boyd on 3/7/2005. (cc, ) Additional attachment(s) added on 3/8/2005 (cc, ).
Saffol d v. Watson-Foster et al (INMATE1)
IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA S O U T H E R N DIVISION H A R R Y EDWARD SAFFOLD, JR., A IS # 194505, Plaintiff, v. L IL L IE WATSON-FOSTER, et al., Defendants. ) ) ) ) ) ) ) ) ) )
CIVIL ACTION NO. 1:05-CV-193-T
R E C O M M E N D A T I O N OF THE MAGISTRATE JUDGE In this 42 U.S.C. § 1983 action, Harry Edward Saffold, Jr., a state inmate, alleges that c o rre c tio n a l officers and a kitchen steward violated his constitutional rights when they made th re a te n in g , abusive and/or derogatory comments to him. Additionally, Saffold maintains th a t defendant Byrd improperly applied the brakes of the transport van and that defendant W a m b le s acted in violation of his equal protection rights. The plaintiff further complains th a t warden Watson-Foster failed to adequately discipline the correctional officers involved in his complaints. He seeks monetary damages and declaratory relief. Upon review of the complaint, the court concludes that dismissal of the majority of S af fo ld's claims is appropriate under 28 U.S.C. § 1915(e)(2)(B)(i).1
1A prisoner who is allowed to proceed in forma pauperis in this court will have his complaint
screened in accordance with the provisions of 28 U.S.C. § 1915(e)(2)(B). This screening procedure requires the court to dismiss a prisoner's civil action prior to service of process if it determines that the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary damages from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
D I SC U S S IO N I. Threatening, Abusive and Derogatory Statements Saffo ld asserts that various correctional officers and a kitchen steward subjected him to constant threats, abusive language and derogatory comments. In support of this claim, Saffo ld contends that he was called stupid, dumb and a misfit. He also complains that officers made remarks which other inmates construed to mean he was a snitch, threatened him with a transfer, referred to his television program as garbage, made intimidating remarks, l ab e le d him a drug dealer and insinuated threats of bodily harm. An essential element of a 42 U.S.C. § 1983 action is that the conduct complained of d e p r i v e d the plaintiff of rights, privileges or immunities secured by the Constitution or laws o f the United States. Parratt v. Taylor, 451 U.S. 527 (1981). The actions about which the plaintiff complains, standing alone, do not violate the Constitution. Cf. Paul v. Davis, 424 U . S . 693 (1976). Threatening, derogatory or abusive comments made by correctional officers to an inmate do not rise to the level of a constitutional violation. See McFadden v. L u c a s , 713 F.2d 143 (5th Cir. 1983); see also Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973). Thus, the plaintiff's assertion fails to demonstrate that the statements of the
c o r r e c ti o n a l officers and kitchen steward deprived him of any protected right, privilege or immunity. Consequently, the claims asserted by the plaintiff arising from alleged
t h r e a te n i n g , abusive or derogatory comments are frivolous as these claims lack an arguable basis in law and are therefore subject dismissal in accordance with the directives of 28 U.S.C.
§ 1915(e)(2)(B)(i). Neitzke v. Williams, 490 U.S. 319, 327 (1989). 2 II. The Erratic Driving Claim T h e plaintiff complains that during transportation from his job to the correctional facility defendant Byrd "hit the break petal in the center of traffic . . ." See Attachment to the C o m p l a i n t at 1. This action fails to allege a violation of any constitutional right and is due to be summarily dismissed upon application of 28 U.S.C. § 1915(e)(2)(B)(i). I I I . The Claim Against Warden Watson-Foster T h e plaintiff complains that warden Watson-Foster failed to undertake disciplinary a c t io n against the correctional officers who allegedly harassed him. This claim entitles the plaintiff to no relief as he has no constitutional right to have disciplinary procedures initiated a g a i n s t correctional officers and such claim is due to be dismissed pursuant to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). CONCLUSION Ac cord ingly, it is the RECOMMENDATION of the Magistrate Judge that: 1 . The claims related to threats, abusive language and/or derogatory comments lodged a g a i n s t defendants Lambert, Judd, Sapp, Wambles, Dunn, Terry, McCovery, Byrd and Con ners be dismissed with prejudice under 28 U.S.C. § 1915(e)(2)(B)(i). 2 . The erratic driving claim against defendant Byrd be dismissed with prejudice in
A l t h o u g h Neitzke interpreted the provisions of 28 U.S.C. § 1915(d), the predecessor to § 1915(e)(2),
t h e analysis contained therein remains applicable to the directives contained in the present statute.
accordan ce with the directives of 28 U.S.C. § 1915(e)(2)(B)(i). 3 . The claim presented against defendant Watson-Foster be dismissed with prejudice pursuan t to the provisions of 28 U.S.C. § 1915(e)(2)(B)(i). 4 . Defendants Lambert, Judd, Sapp, Dunn, Terry, McCovery, Byrd, Conners and W a t s o n - F o s t e r be dismissed from this cause of action. 5 . The equal protection claims lodged against defendant Wambles be referred back to the undersigned for appropriate proceedings. It is further ORDERED that the parties shall file any objections to the said Recommendation with in a period of 13 days from the date of mailing or transmittal to them. Any objections f i le d must specifically identify the findings in the M agistrate Judge's Recommendation to w h i c h the party is objecting. Frivolous, conclusive or general objections will not be c o n s i d e re d by the District Court. The parties are advised that this Recommendation is not a final order of the court and, therefore, it is not appealable. Failu re to file written objections to the proposed findings and advisements in the M agistrate Judge's Recommendation shall bar the party from a de novo determination by the D i s tr i c t Court of issues covered in the Recommendation and shall bar the party from a t t ac k i n g on appeal factual findings in the Recommendation accepted or adopted by the D i s t r ic t Court except upon grounds of plain error or manifest injustice. Nettles v.
W a i n w r i g h t, 677 F.2d 404 (5th Cir. 1982). See Stein v. Reynolds Securities, Inc., 667 F.2d
3 3 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981, en b a n c ), adopting as binding precedent all of the decisions of the former Fifth Circuit handed d o w n prior to the close of business on September 30, 1981. D o n e this 7 th day of March, 2005.
/ s / Delores R. Boyd D E L O R ES R. BOYD UNITED STATES MAGISTRATE JUDGE
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