McNabb v. Johnson et al
Filing
8
OPINION AND ORDER that the complaint against Deputy Johnson and Lieutenant Holt are DISMISSED WITH PREJUDICE. Signed by Honorable Timothy L. Brooks on August 17, 2016. (rg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
CHARLES RAY McNABB
V.
PLAINTIFF
CASE NO.: 5:16-CV-05203
DEPUTY JOHNSON ; JOHN OR
JANE DOE DOCTORS; JOHN OR
JANE DOE NURSES; and
LIEUTENANT HOLT
DEFENDANTS
OPINION AND ORDER
This is a civil rights action filed Plaintiff Charles McNabb under the provisions of 42
U.S.C . § 1983. Plaintiff proceeds prose and in forma pauperis. He is incarcerated in the
Benton County Detention Center (BCDC).
The Prison Litigation Reform Act (PLRA) modified the IFP statute , 28 U.S.C. § 1915,
to require the Court to screen complaints for dismissal under§ 1915(e)(2)(8). 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)(8 ).
I. BACKGROUND
According to the allegations of the Complaint (Doc. 1), on July 23 , 2016 , Deputy
Johnson was on the top tier of the pod when he turned off his radio , took off his
microphone , and told Plaintiff to go to the public restroom .
Plaintiff alleges he felt
threatened and intimidated . He does not allege that Deputy Johnson struck him or in any
other way physically injured him. Plaintiff alleges that he submitted a grievance about
Deputy Johnson's conduct; and , the next day, Deputy Johnson came to his cell door and
"just shook his head and came back to my cell 20 mins. later and stated that 'if you have
1
a problem with me say it to my face."'
Plaintiff alleges that after he filed the grievance against Deputy Johnson , Lieutenant
Holt "said that Deputy Johnson did not break any rules." He asserts that Lieutenant Holt
refused to talk to him and would not let him file charges against Deputy Johnson .
Finally, with respect to the John and/or Jane Doe nurses and doctors, Plaintiff
alleges that on July 10, 2016 , they refused to give him the insomnia medicine his family
brought to the jail for him. He states that not having the medication has interfered with his
sleep. Additionally, Plaintiff alleges that on August 7, 2016 , the doctor, without consulting
Plaintiff's private doctor, changed Plaintiff's bi-polar medication from twice a day to once
a day. Plaintiff asserts that this resulted in "messing with my mental disorder an[d] causing
me to have mental episodes because of it."
11. 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 , 325 (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 , .. . to 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)).
With respect to Deputy Johnson , while the conduct alleged was certainly
unprofessional , Plaintiff makes no allegation that he was physically attacked or injured .
In the context of a§ 1983 case , "[v]erbal threats do not constitute a constitutional violation ."
2
Martin v. Sargent, 780 F.2d 1334, 1339 (8th Cir. 1985). Similarly, taunts, name calling , and
the use of offensive language does 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 , 826 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 , 780 F.2d at 1338-1339 (being called an obscene name
and threatened with adverse consequences unless he cut his hair and shaved does 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
was stated where the 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").
With respect to Lieutenant Holt, no claim of constitutional dimension has been
stated . First, no constitutional claim is stated based on her alleged failure to properly
respond to or process his grievance. "Inmates do not have a constitutionally protected
right to a grievance procedure. Because a .. . grievance procedure does not confer any
substantive right upon prison inmates, a prison official's failure to comply with the ...
grievance procedure is not actionable under§ 1983." Ashann-Ra v. Commonwealth of
Virginia , 112 F. Supp . 2d 559 , 569 (W.D. Va . 2000) (citations omitted); see also Lombolt
v. Holder, 287 F.3d 683, 684 (8th Cir. 2002) (denial of grievances does not state a
substantive constitutional claim); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993) ("no
constitutional right was violated by the defendants' failure , if any, to process all of the
grievances [Plaintiff] submitted for consideration"); Adams v. Rice, 40 F.3d 72 , 74 (4th Cir.
3
1994) (inmates have no constitutional right to grievance procedure); Blagman v. White , 112
F. Supp . 2d 534 (E .D. Va. 2000) (inmate has no constitutional entitlement to grievance
procedure), aff'd, 3 Fed. Appx. 23 (4th Cir. 2001 ).
"Rather, prison inmates have a constitutional right to petition the government for
redress through a right of access to the courts." Blagman , 112 F. Supp. 2d at 542 (citing
Flick v. Alba , 932 F.2d 728 , 729 (8th Cir. 1991 )) . A jail's "refusal to entertain such
grievances does not compromise the inmate's constitutional rights , as access to the courts
would still be available ." Id. (citation omitted ). "[A]ny alleged due process violation arising
from the alleged failure to investigate his grievances is indisputably meritless." Geiger v.
Jowers , 404 F.3d 371 , 374 (5th Cir. 2005).
Second , to the extent Plaintiff's claims are based on the refusal of Lieutenant Holt
to bring criminal charges against Deputy Johnson, the claims fail. A private citizen has no
right to institute criminal prosecution . See Diamond v. Charles, 476 U.S. 54, 64-65 (1986);
In re Kaminski, 960 F.2d 1062, 1064 (D.C . Cir. 1992) (private party lacks judicially
cognizable interest in prosecution of another person); Lopez v. Robinson, 914 F.2d 486 ,
494 (4th Cir. 1990); Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989).
Ill. CONCLUSION
The Complaint as against Deputy Johnson and Lieutenant Holt fails to state
cognizable claims under§ 1983 and is frivolous. Therefore , these claims are DISMISSED
WITH PREJUDICE. See 28 U.S.C. § 1915(e)(2)(B)(i)-(ii) (IFP action , or any part of it, may
be dismissed at any time due to frivolousness , for failure to state a claim , or because the
claims are against a party immune from suit) . The denial of medical care claim against the
remaining Defendants remains for later resolution .
4
~
IT IS SO ORDERED on this
-11
day of Au
s 2016.
OOKS
ES DISTRICT JUDGE
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?