Johnson v. McGough

Filing 14

OPINION AND ORDER re 1 Complaint Referred (42:1983) filed by Larry Johnson. Signed by Honorable Timothy L. Brooks on August 9, 2016. (tg)

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IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS FAYETTEVILLE DIVISION PLAINTIFF LARRY JOHNSON v. Civil No. 5:16-cv-05095 OFFICER DONTE McGOUGH, DEFENDANT Washington County Detention Center OPINION AND ORDER This is a civil rights case filed by the Plaintiff Larry Johnson under the provisions of 42 U.S.C. § 1983. Johnson proceeds pro se and in forma pauperis. He is incarcerated in the Washington County Detention Center (WCDC). The Prison Litigation Reform Act (PLRA) modified the IFP statute, 28U.S.C.§1915, to require the Court to screen complaints for dismissal under § 1915(e)(2)(B). The Court must dismiss a complaint, or any portion of it, if it contains claims that: (a) are frivolous or malicious; (b) fail to state a claim upon which relief may be granted; or (c) seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). I. BACKGROUND According to the allegations of the Complaint (Doc. 1), on April 10, 2015, late at night, the Johnson was brushing his teeth. Officer Donte McGough demanded that Johnson come to the door to speak with him. Johnson walked over to the door, and Officer McGough "politely asked [Johnson] with a serious look, 'How much are you charging for your ass."' Johnson states he was shocked, frightened, felt violated, and now does not trust any of the guards. II. DISCUSSION Under the PLRA, the Court is obligated to screen a case prior to service of process being issued. A claim is frivolous when it "lacks an arguable basis either in law or fact." Neitzke v. Williams, 490 U.S. 319, 3 25 (1989). A claim fails to state a claim upon which relief may be granted if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S.544, 570 ( 2007). However, the Court bears in mind that when "evaluating whether a prose plaintiff has asserted sufficient facts to state a claim, we hold 'a prose complaint, however inartfully pleaded, less stringent standards than formal pleadings drafted by lawyers."' Jackson v. Nixon, 747 F. 3d 537, 541 (8th Cir. 2014)(quoting Erickson v. Pardus, 551 U.S. 89, 94 ( 2007)). Johnson's allegations do not state a claim of constitutional dimension. Taunts, name calling, and the use of offensive language do not state a claim of constitutional dimension. McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993)(inmate's claims of general harassment and of verbal harassment were not actionable under § 1983); O'Donnell v. Thomas, 8 26 F.2d 788, 790 (8th Cir. 1987)(verbal threats and abuse by jail officials did not rise to the level of a constitutional violation); Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985)(being called an obscene name and threatened with adverse consequences unless he cut his hair and shaved did not state a claim of constitutional dimension); Black Spotted Horse v. Else, 767 F.2d 516, 517 (8th Cir.1985)(use of racially offensive language in dealing with a prisoner does not, by itself, state a claim). Cf. Burton v. Livingston, 791 F.2d 97, 100-101 (8th Cir. 1986)(claim stated where prisoner alleged "that a prison guard, without provocation, and for the apparent purpose of retaliating against the prisoner's exercise of his rights in petitioning a federal court for redress, terrorized him with threats of death "). Ill. CONCLUSION The Complaint fails to state a cognizable claim under § 1983 and is frivolous. Therefore, it is DISMISSED WITH PREJUDICE. See 28 U.S.C.§ 1915(e)(2)(B)(i)-(ii) (IFP action may be dismissed at any time IT IS SO ORDERED on this � � to frivolousness o r; or failure to state a claim). day of August, 2 1 .

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