King v. Pooley et al

Filing 4

RECOMMENDED DISPOSITION recommending that Plaintiff's claims against Defendants Pooley, Cooper, Moore, and Lynch be dismissed without prejudice, that his claims against Defendant White County Detention Facility be dismissed with prejudice, and that his application for leave to proceed in forma pauperis be denied as moot. Objections to R&R due by 7/22/2009. Signed by Magistrate Judge Beth Deere on 7/8/09. (hph)

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IN THE UNITED STATES DISTRICT COURT E A S T E R N DISTRICT OF ARKANSAS W E S T E R N DIVISION B R E N E D E N ROBERT KING V. P O O L E Y , et al. R E C O M M E N D E D DISPOSITION I. P r o c e d u r e for Filing Objections: C A S E NO. 4:09-CV-00472-JLH-BD P L A IN T IF F DEFENDANTS T h e following recommended disposition has been sent to United States District C o u rt Chief Judge J. Leon Holmes. Any party may serve and file written objections to th is recommendation. Objections should be specific and should include the factual or le g a l basis for the objection. If the objection is to a factual finding, specifically identify th a t finding and the evidence that supports your objection. An original and one copy of yo u r objections must be received in the office of the United States District Court Clerk no la te r than eleven (11) days from receipt of the findings and recommendations. A copy w ill be furnished to the opposing party. Failure to file timely objections may result in w a iv e r of the right to appeal questions of fact. Mail your objections and "Statement of Necessity" to: C le rk , United States District Court E a s te rn District of Arkansas 6 0 0 West Capitol Avenue, Suite A149 L ittle Rock, AR 72201-3325 II. B ackground: P la in tif f , a detainee at the White County Detention Facility, brings this action pro s e under 1983 (docket entry #2). In his Complaint, Plaintiff alleges that Defendants h a v e violated his constitutional rights by subjecting him to verbal harassment and name c a llin g . Plaintiff claims that he has suffered emotional distress as a result of the D e f e n d a n ts ' alleged conduct, but he does not claim that he has been physically injured by a n y of the Defendants or that he has been physically injured by any other detainees as a re s u lt of the Defendants' alleged comments.1 T h e Court concludes that Plaintiff has failed to state a claim for relief under 1983. Accordingly, Plaintiff's claims should be dismissed without prejudice and his a p p lic a tio n for leave to proceed in forma pauperis (#1) should be DENIED as moot. III. D is c u s s io n : A. S ta n d a r d : F e d e ra l courts are required to screen prisoner complaints seeking relief against a g o v e rn m e n ta l entity, officer, or employee. 28 U.S.C. 1915A(a). The Court must d is m is s a complaint or portion thereof if the prisoner has raised claims that are frivolous, m a lic io u s , fail to state a claim upon which relief may be granted, or seeks monetary relief f ro m a defendant who is immune from such relief. 28 U.S.C 1915A(b). Although Plaintiff claims that he has had several "run ins and conflicts" with one d e ta in e e , he does not allege that he suffered any physical injuries from any confrontation o r that Defendants have failed to protect him from physical harm. 2 1 To state an actionable claim under 42 U.S.C. 1983, a plaintiff must allege that th e conduct of a defendant acting under color of state law deprived him of a right, p riv ile g e , or immunity secured by the federal Constitution or laws of the United States. 42 U.S.C. 1983. Courts must accept the factual allegations in a complaint as true and h o ld a plaintiff's pro se complaint "to less stringent standards than formal pleadings d ra f te d by lawyers," Haines v. Kerner, 404 U.S. 519, 520-21 (1972) ( per curiam ). However, a civil rights complaint "must contain facts which state a claim as a matter of la w and must not be conclusory." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th C ir. 1995). This does not require "great detail, but the facts alleged `must be enough to ra ise a right to relief above the speculative level' and must `state a claim to relief that is p la u s ib le on its face.'" Drobnak v. Andersen Corp., 561 F.3d 778, 783 (8th Cir. 2009) (q u o tin g Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007)). B. D e fe n d a n ts Pooley, Cooper, Moore, and Lynch: P la in tif f alleges that since his arrival at the White County Detention Facility D e f e n d a n ts Pooley, Cooper, Moore, and Lynch have assumed that he is homosexual and h a v e subjected him to verbal harassment based upon his sexual orientation. Further, P la in tif f complains that Defendants have assumed that he is HIV-positive based upon his f a ilu re to answer questions regarding his medical history and have inquired about his HIV s ta tu s in front of other detainees. 3 It is well settled that verbal abuse and mere threatening language by prison o f f ic ia ls generally does not rise to the level of a Constitutional violation. See McDowell v . Jones, 990 F.2d 433, 434 (8th Cir. 1993) (holding that verbal harassment, threats, and n a m e calling are not actionable under 1983); Hopson v. Fredericksen, 961 F.2d 1374, 1 3 7 8 (8th Cir. 1992) (holding that "mere verbal threats made by a state actor do not c o n s titu te a 1983 claim"); and Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (h o ld in g verbal threats and name calling not actionable under 1983). The Eighth Circuit has held that a threat amounts to a constitutional violation only w h e n it is so brutal or wantonly cruel as to shock the conscience. See Burton v. L iv in g s to n , 791 F.2d 97 (8th Cir. 1986) and Hopson v. Fredericksen, 961 F.2d 1374, 1 3 7 8 -9 (8th Cir. 1992) (holding that verbal threats do not amount to constitutional v io la tio n s unless they rise to the level of a brutal and wanton act of cruelty). Plaintiff's a lle g a tio n s that Defendants consistently made comments regarding his sexual orientation f a ll short of being so brutal or wantonly cruel as to shock the conscience; if the a lle g a tio n s are true, the Defendants' actions, at worst, constitute unprofessional conduct.2 In his Complaint, Plaintiff also alleges that while he was separated from the o th e r detainees in the medical unit of the White County Detention Facility, jail officials th o u g h t that he was "missing." During that time, Plaintiff claims that he missed at least o n e meal. Such an allegation is insufficient to state an eighth amendment claim. See G r e e n v. Ferrell, 801 F.2d 765, 770 (5th Cir. 1986) (even on a regular basis, two meals a d a y may be adequate); see also Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999) (claim o f eight missed meals properly dismissed as frivolous); Cunningham v. Jones, 667 F.2d 5 6 5 , 566 (6th Cir. 1982)(Eighth Amendment not violated when inmate served only one m e a l a day for fifteen consecutive days where the one meal was sufficient to maintain n o rm a l health). 4 2 Plaintiff's allegations relating to his HIV status also fail to state a claim. First, in h is Complaint, Plaintiff states that he has not tested positive for HIV, and there is no a lle g a tio n that any Defendant specifically told another inmate that Plaintiff had tested p o s itiv e for HIV. Although Plaintiff may choose to pursue this claim in state court, his a lle g a tio n s fail to state a federal claim for relief under 1983.3 C. W h ite County Detention Facility: In his Complaint, Plaintiff names the White County Detention Facility as a D e f e n d a n t. Section 1983 authorizes suit against any "person" acting under color of state la w who deprives an individual of constitutional rights. However, a jail is not a person or e n tity subject to suit under 1983. See La Garza v. Kandiyohi County Jail, 18 Fed. A p p x . 436 (8th Cir. 2001) (unpub. table op.) (affirming dismissal of county jail on g ro u n d s that a jail is not an entity subject to suit under 1983). See e.g. Powell v Cook C o u n ty Jail, 814 F. Supp. 757 (N.D. Ill. 1993) (jail not subject to suit under 1983); and Marsden v. Fed. Bureau of Prisons, 856 F.Supp. 832, 836 (S.D.N.Y. 1994) (" ja il is not an entity that is amendable to suit"). Accordingly, all claims against the W h ite County Detention Facility should be dismissed. In order to succeed on a defamation claim in Arkansas, Plaintiff must prove: "(1) th e defamatory nature of the statement of fact; (2) that statement's identification of or re f e re n c e to the plaintiff; (3) publication of the statement by the defendant; (4) the d e f e n d a n t's fault in the publication; (5) the statement's falsity; and (6) damages." Dodson v. Allstate Ins. Co., 365 Ark. 458, 231 S.W.3d 711 (2006). 5 3 IV. C o n c lu s io n : T h e Court recommends that Plaintiff's claims against Defendants Pooley, Cooper, M o o re , and Lynch be dismissed without prejudice, that his claims against Defendant W h ite County Detention Facility be dismissed with prejudice, and that his application for le a v e to proceed in forma pauperis (#1) be DENIED as moot. D A T E D this 8th day of July, 2009. ___________________________________ U N IT E D STATES MAGISTRATE JUDGE 6

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