Cunningham v. Womack et al

Filing 6

MEMORANDUM OPINION by Senior Judge Thomas B. Russell on 1/15/2013. For the reasons set forth, the Court will by separate Order dismiss Plaintiffs complaint. cc: Plaintiff (pro se); Defendants (TJD)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT BOWLING GREEN
DOMINICK CUNNINGHAM

PLAINTIFF

v.

CIVIL ACTION NO. 1:12CV-P207-R

ROGER WOMACK et al.

DEFENDANTS

MEMORANDUM OPINION
Plaintiff, Dominick Cunningham, filed a pro se, in forma pauperis complaint pursuant to
42 U.S.C. § 1983. This matter is before the Court for screening pursuant to 28 U.S.C. § 1915A
and McGore v. Wrigglesworth, 114 F.3d 601 (6th Cir. 1997). For the reasons set forth below, the
action will be dismissed.
I. SUMMARY OF CLAIMS
Plaintiff, a pretrial detainee at the Warren County Regional Jail (WCRJ), sues in their
individual capacities the following WCRJ employees: Roger Womack and Thomas Maxwell.
Plaintiff states that on December 7, 2012, he was called to the worship service that he has
attended numerous times before. He alleges that Defendant Womack violated his First
Amendment rights when he told Plaintiff that he “must leave cause I was standing around
learning how to pray.” He alleges that Defendants Womack and Maxwell violated his Fourteenth
Amendment due-process rights by refusing to give him a grievance form. He further alleges
Eighth Amendment violations of “negligence and verbal abuse” and mental and emotional stress
stemming from having his religious freedom interfered with. Plaintiff asks for monetary and
punitive damages and “release on parole.”
II. ANALYSIS
When a prisoner initiates a civil action seeking redress from a governmental entity,

officer, or employee, the trial court must review the complaint and dismiss the action, if the court
determines that it is frivolous or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief from a defendant who is immune from such relief. See 28
U.S.C. §§ 1915A(b)(1) and (2). A claim is legally frivolous when it lacks an arguable basis
either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). The Court may, therefore,
dismiss a claim as frivolous where it is based on an indisputably meritless legal theory or where
the factual contentions are clearly baseless. Id. at 327. When determining whether a plaintiff has
stated a claim upon which relief can be granted, the Court must construe the complaint in a light
most favorable to Plaintiff and accept all of the factual allegations as true. Prater v. City of
Burnside, Ky., 289 F.3d 417, 424 (6th Cir. 2002). While a reviewing court must liberally
construe pro se pleadings, Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam), to avoid
dismissal, a complaint must include “enough facts to state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
First Amendment claim
The First Amendment prevents the government from prohibiting or excessively curtailing
the free exercise of religion. However, according to the complaint, Defendant Womack telling
Plaintiff he must leave the worship service was an isolated event. Plaintiff states in his
complaint that he had been to the worship service “numerous times.” A one-time interference
with the free exercise of religion does not rise to a constitutional violation. See Gunn v.
Kentucky, No. 5:07CV-P103-R, 2010 WL 2555756, at *5 (W.D. Ky. June 18, 2010); Greenberg
v. Hill, No. 2:07-CV-1076, 2009 WL 890521, at *6 (S.D. Ohio Mar. 31, 2009) (“[I]solated or
sporadic government action or omission is de minimis and does not constitute a ‘substantial

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burden.’”); Cancel v. Mazzuca, 205 F. Supp. 2d 128, 142 (S.D.N.Y. 2002) (finding that an
“isolated denial, such as having to miss a single religious service, does not constitute a substantial
burden on a prisoner’s right to practice his religion”). Consequently, this claim will be dismissed
by separate Order.
Due-process claim
Plaintiff alleges that Defendants Maxwell and Womack denied his request for a grievance
form. Plaintiff asserts that the jail rules do not require an inmate to “wait to count time to get a
grievance as these 2 officers rudely denied me one.”
An inmate grievance procedure within the prison system is not constitutionally required.
See United States ex rel. Wolfish v. Levi, 439 F. Supp. 114, 163 (S.D.N.Y. 1977), aff’d sub nom,
Wolfish v. Levi, 573 F.2d 118 (2nd Cir. 1978), rev’d on other grounds, Bell v. Wolfish, 441 U.S.
520 (1979); Spencer v. Moore, 638 F. Supp. 315 (E.D. Mo. 1986); O’Bryan v. County of
Saginaw, 437 F. Supp. 582, 601 (E.D. Mich. 1977). If the prison provides a grievance process,
violations of its procedures do not rise to the level of a federal constitutional right. Spencer, 638
F. Supp. at 316. Since Plaintiff has no right to an effective grievance procedure, Ishaaq v.
Compton, 900 F. Supp. 935, 940-41 (W.D. Tenn. 1995); Flowers v. Tate, Nos. 90-3742, 90-3796,
1991 WL 22009 (6th Cir. Feb. 22, 1991), a failure to follow the grievance procedures does not
give rise to a § 1983 claim. Id.; Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill. 1982). Thus,
Plaintiff’s claim relating to the grievance procedure must be dismissed.
Eighth Amendment claim
Plaintiff alleges “negaligence and verbal abuse in connection which the 8th amendment
and 14th amendment with what Maxwell and Womack done. I also allege[] the torts of verbal

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abuse mental and emotional stress under the 8th Amend. Constitution of the U.S.” The Sixth
Circuit has held that harassing or degrading language by a prison official, although
unprofessional and despicable, does not amount to a constitutional tort. Johnson v. Unknown
Dellatifa, 357 F.3d 539, 546 (6th Cir. 2004); Violett v. Reynolds, 76 F. App’x 24, 27 (6th Cir.
2003) (“[V]erbal abuse and harassment do not constitute punishment that would support an
Eighth Amendment claim.”); Ivey v. Wilson, 832 F.2d 950, 954-55 (6th Cir. 1987); see also
Searcy v. Gardner, Civil No. 3:07-0361, 2008 WL 400424, at *4 (M.D. Tenn. Feb. 11, 2008) (“A
claim under 42 U.S.C. § 1983 cannot be based on mere threats, abusive language, racial slurs, or
verbal harassment by prison officials.”). Plaintiff’s claims under the Eighth Amendment must be
dismissed.
Request for relief on parole
To the extent that Plaintiff seeks release from confinement, such relief is not available in a
§ 1983 action. See Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
State-law claims
Because Plaintiff’s federal-law claims will be dismissed, the Court declines to exercise its
supplemental jurisdiction over Plaintiff’s state-law claims. See 28 U.S.C. § 1367(c)(3). Those
claims will be dismissed without prejudice.
III. CONCLUSION
For the foregoing reasons, the Court will by separate Order dismiss Plaintiff’s complaint.
Date:

January 15, 2013

cc:

Plaintiff, pro se
Defendants
4413.009

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